Diagnosing Consciousness:
Neuroimaging, Law, and the
Vegetative State
Carl E. Fisher and Paul S. Appelbaum
R
ecent studies indicate that patients who are
diagnosed with vegetative states may retain
more awareness than their clinical assessments
suggest. Disorders of consciousness traditionally have
been diagnosed on the basis of outwardly observable
behaviors alone, but new functional imaging studies
have shown surprising levels of brain activity in some
patients, indicating that even higher-level cognitive
functions like language processing and visual imagery
may be preserved. For example, one recently developed
method purports to detect voluntary mental imagery
solely on the basis of neural response patterns observed
with functional magnetic resonance imaging (fMRI).
This line of research has already led to some widely
reported cases of patients who were discovered to have
more brain activity than expected. In November 2009,
Rom Houben, a Belgian man who was thought to be
in a coma for 23 years, was diagnosed with locked-in
syndrome through the use of neuroimaging; however,
that assessment was later overturned by further test-
ing.1 More recently, investigators using fMRI studied
over 50 patients with disorders of consciousness: five
were able to perform a willful mental imagery task,
and on follow-up testing one was able to use this task
to answer basic yes-or-no questions.2 These findings
have led to several suggestions that neuroimaging
might play a role in decision-making at the end of life,
Carl E. Fisher, M.D., is a resident in psychiatry at Columbia
University and the New York State Psychiatric Institute, New
York, NY. He was previously a Doris Duke Clinical Research
Fellow in the division of Brain Stimulation and Therapeutic
Modulation at Columbia University. Paul S. Appelbaum,
M.D., is the Elizabeth K. Dollard Professor of Psychiatry,
Medicine & Law and the Director of the Division of Psychia-
try, Law, and Ethics in the Department of Psychiatry at the
College of Physicians and Surgeons of Columbia University.
374
and it seems likely that such tests will soon be offered
as evidence in court proceedings. For example, in one
recent English case the Official Solicitor objected to
the withdrawal of treatment from a patient on the
grounds that fMRI might reveal covert consciousness,
although this objection was eventually withdrawn.3
The specific legal scenarios that might arise from such
a challenge, and the broader legal and ethical signifi-
cance of this application of neuroimaging, however,
remain relatively unexplored in the legal, clinical, and
bioethics literature.4
In this paper, we review recent neuroimaging inves-
tigations of disorders of consciousness and different
disciplines’ understanding of the concept of conscious-
ness itself. There are many ways one might test for
consciousness, all with varying levels of explanatory
power. More fundamentally, there is little consensus
on the nature of “consciousness” in the scientific, clini-
cal, legal, or philosophical disciplines. We consider
these potential tests, their legal significance, and how
they map onto broader themes in U.S. statutory law
pertaining to advance directives and surrogate deci-
sion-making. In the process, we outline a taxonomy of
themes to illustrate and clarify the variance in state-
law definitions of consciousness. Far from a binary dis-
tinction between awareness and unawareness, these
definitions range across multiple domains of function,
and they are further confused by the indiscriminate
use of colloquial terms for mental processes. Finally,
we discuss broader scientific, ethical, and legal issues
associated with the development of neuroimaging for
disorders of consciousness and conclude with policy
recommendations that could mitigate confusion in
this realm.
journal of law, medicine & ethics
 Fisher and Appelbaum

Consciousness and Its Disorders arousal and awareness is largely one of social conven-
The term “disorders of consciousness” has tradition- tion and suggest that in scientific practice we should
ally referred to coma, vegetative state (VS), and mini- conflate the two.14 Cognitive neuroscience researchers
mally conscious state (MCS). The definition of VS has are divided on this question as well. Some agree that
the greatest legal relevance; specifically, most states the distinction between awareness and consciousness
restrict the decision to withhold or withdraw artificial is meaningless.15 Another perspective subdivides the
nutrition to situations in which a patient is in a “per- precise meaning of consciousness even further using
manently unconscious state” or VS.5 a linguistic analysis: consciousness can be either
transitive (consciousness of something)
or intransitive (consciousness as such).16
If the transitive form is specific (e.g., con-
In this paper, we review recent neuroimaging sciousness of a painful stimulus), it is simi-
investigations of disorders of consciousness lar to awareness. On the other hand, a gen-
and different disciplines’ understanding of the eral conception of the transitive form (e.g.,
consciousness of the environment) can be
concept of consciousness itself. called vigilance and considered a graded
variable similar to attention; it is thus
comparable to neurology’s “wakefulness.”
In neurological practice, consciousness is usually “Consciousness as such” has no clear counterpart in
separated into two components: arousal (or wake- the clinical literature.
fulness) and awareness.6 VS is defined clinically as The neurosciences have occasionally turned to phi-
arousal without awareness, i.e., being awake without losophy of mind to clarify these terminological ques-
awareness of self or environment.7 Patients in a VS tions, and while there is even less agreement on the
have sleep-wake cycles and some preservation of basic nature of consciousness in philosophy than in neu-
reflexes, but they show no evidence of “sustained, rology or neuroscience, philosophical critiques have
reproducible, purposeful, or voluntary behavioral helped to delineate the components of consciousness.
responses” to any stimuli.8 A “persistent vegetative Examples of other possible subdivisions include access
state” is a VS that remains one month after brain dam- consciousness, monitoring consciousness, informa-
age, which becomes a “permanent vegetative state” tional sensitivity, representational experience, crea-
three months after non-traumatic brain damage or ture consciousness, and many more.17 Any number of
one year after traumatic injury.9 Only “permanent VS” classificatory schemes for consciousness may be found
is meant to indicate irreversibility. in the various branches of contemporary philosophy,
Patients in a MCS, on the other hand, show clear and an exhaustive review of this field is far beyond
but inconsistent evidence of awareness of themselves the scope of this paper. For the purpose of the present
or their environments. MCS is diagnosed by reproduc- topic, one practical addition to this vocabulary is “phe-
ible evidence of clearly delineated behaviors, includ- nomenal consciousness,” which is a highly contested
ing purposeful action, sustained visual pursuit, or topic but generally refers to “what it is like to be” a
even limited communication.10 In practice, MCS may subject of experience, i.e., the qualitative character of
be falsely conflated with VS for many reasons: MCS experience.18 Several aspects of “self consciousness”
is an inherently heterogeneous condition; its symp- can be elaborated as well, including self-recognition,
toms by definition fluctuate; its diagnostic criteria are awareness of subjective experience, and autobio-
relatively new; and its sufferers are frequently “ware- graphical knowledge.19 These concepts are not found
housed” after an initial diagnosis of VS without regu- in most neurological classifications, but intuitively,
lar neurologic testing.11 Even recently, studies of diag- many people would consider them to be important
nostic accuracy have reported that as many as 41% components of what it means to be conscious.
of MCS patients are misdiagnosed as being in a VS.12 In sum, while systematized criteria exist for the def-
From a conceptual standpoint, however, the clinical inition of MCS and VS in clinical practice and some
definitions for these two states are distinct. comparisons can be drawn between different disci-
Despite clear diagnostic criteria for these states of plines’ definitions of consciousness, there is ultimately
impaired consciousness, though, there is little agree- fundamental disagreement on the nature of conscious-
ment on how to describe consciousness itself, or ness and its subcomponents. There is only one clear
even what constitutes consciousness. 13 Some clini- conclusion to be drawn: consciousness, in the words
cal researchers assert that the distinction between of the philosopher Ned Block, is a “mongrel concept,”

law, science, and innovation: the embryonic stem cell controversysummer 2010 375
IND EPEND ENT
one that “connotes a number of different concepts and
denotes a number of different phenomena.”20 This
semantic confusion in defining consciousness directly
impacts legal practice, specifically in the application of
relatively precise scientific concepts to more nebulous
statutory definitions. Overall, the terms are further
confused by colloquial labels for mental processes. But
before illustrating this, we first review how neuroim-
aging investigations of consciousness came to develop
practical significance in this context.
Neuroimaging Disorders of Consciousness
The fearful possibility of retaining consciousness with-
out the means to express oneself has been recognized
since at least 1867, when Emile Zola told the story of
a paralyzed woman who “was buried alive in a dead
body” in his novel Therese Raquin.21 With the advent
of brain imaging, neuroscientists were able to directly
investigate brain/behavior discrepancies in disorders
of consciousness.
Functional neuroimaging relies on a variety of brain
imaging methods to study thought and behavior.
Positron emission tomography (PET) is performed by
injecting a person with radioactively labeled elements,
which allows investigators to localize metabolic activ-
ity to particular areas of the brain. fMRI, in contrast,
uses strong magnetic fields to monitor the level of
blood oxygenation in the brain as a surrogate marker
for neural activity. Electroencephalography (EEG)
uses electrodes on the surface of the scalp to detect
the summed activity of underlying brain regions, and
as such, it is less effective at revealing the precise locus
of neural activity. In order to test a particular cogni-
tive process, these methods require data-gathering
while a subject performs an experimental paradigm,
which then must be compared to a control condition
to show a difference in brain activation between the
experimental and control conditions. Recently, stud-
ies of disorders of consciousness have employed fMRI
more often than PET, likely because the former is more
widely available and poses less risk to subjects. Below,
we review selected studies to illustrate the range of
empirical approaches to diagnosing consciousness,
from detecting general activity to probing for voli-
tional responses.
Early PET reports of individual patients in VS
showed decreased metabolic activity, e.g., glucose
metabolism, as a general surrogate marker for con-
scious experience.22 Other case reports of VS showed
evidence for regional brain activity in response to
the passive presentation of stimuli, such as increased
activity in emotional processing regions when a fam-
ily member reads a story,23 or in facial recognition
376
regions when a patient is shown pictures of family and
close friends.24
Later studies of groups of patients suggested that
these findings might be more common than expected.
In one report, “islands” of relatively preserved brain
metabolism at rest showed that patients in VS might
retain partial cognitive function.25 Later, functional
magnetic resonance imaging (fMRI) was used in a
similar manner with two MCS patients to demonstrate
preserved large-scale cortical networks in response to
a passive language paradigm.26 Another study used
EEG and single positron emission computed tomog-
raphy (SPECT — a method generally similar to PET)
to find increased visual cortex activity in response to
visual stimuli in patients recovering from a VS, as
compared to patients who were clinically deteriorat-
ing toward a permanent VS.27 However, the use of
painful stimuli led to conflicting findings regarding
the retention of higher-order brain functions in VS
patients. One PET study of painful stimuli in persis-
tent VS patients found residual activity in higher-level
sensory areas of the brain,28 but another PET study of
15 patients’ responses to painful stimuli failed to show
any activity in secondary somatosensory areas and
higher-level association areas.29
Recent reports demonstrate how relatively small
methodological refinements can greatly influence the
explanatory power of these experimental paradigms.
For example, one fMRI study of VS and MCS patients
found activity beyond the primary auditory cortex in
response to one’s own name in both groups, which
could be taken to indicate self-consciousness.30 The
control condition of this study, however, was only the
attenuated noise of the MRI scanner, so this result
could have been a low-level, orienting response to
speech in general and not a self-referential, specific
response to hearing one’s own name.31 In contrast,
another fMRI paradigm used a VS patient’s own name
compared with a different name as a control; thus,
when the prefrontal cortex was found to be active,
a stronger case for self-referential processing was
made.32 Similarly, an EEG study of the VS compared
patients’ own names with equally common names,
and some subjects showed increased EEG signals in
response to their own name at 300 milliseconds.33
This result is termed the P3 response and is a rela-
tively well-characterized surrogate marker for cogni-
tive function in decision making processes.
Despite these methodological refinements, the
preceding studies are limited by their use of a single
experimental condition rather than multiple com-
parisons, which might be more effective at delineat-
ing different degrees of consciousness. Beginning in
2005, Adrian Owen’s group at Cambridge developed
journal of law, medicine & ethics
 Fisher and Appelbaum

hierarchical tests of cognitive functions in patients
with disorders of consciousness, attempting to dem-
onstrate progressively higher-level cortical activations
in response to auditory stimuli of increasing complex-
ity.34 According to this model, the experimental para-
digm progresses from basic processing of sound, to
perception of speech versus non-speech, to compre-
hension of semantically ambiguous words (e.g., “The
creak/creek came from a beam in the ceiling/sealing.”)
In a recent fMRI study, some VS and MCS patients
had appropriate neural responses to the mid-level
task of speech versus non-speech, and two VS patients
and one MCS patient had the expected responses to
high-level semantic stimuli.35 Of note, anesthetized
detecting voluntary brain activity using EEG, which is
relatively inexpensive and easy to deploy.
In a widely reported fMRI report from the Owen
group, a woman in a VS was asked to imagine per-
forming different actions, and on the basis of her pat-
terns of neural responses alone she appeared to be
complying with these commands.40 When asked to
imagine playing tennis, significant activations were
observed in her supplementary motor area, which is
active in motor planning; then when she was asked
to imagine walking through her house, there were
activations in a group of brain areas associated with
spatial navigation. This activity pattern mirrors that
of healthy volunteers and was not seen in response

These reports suggest ways in which neuroimaging methods might be

employed in court when end-of-life issues are in dispute. Many states have
enacted statutes to address end-of-life surrogate decision-making, advance
directives, or both. These statutes typically contain quasi-operationalized
definitions of “permanent unconsciousness” or VS, which often do not
correspond to the current clinical understanding of these diagnoses.

volunteers do not show neural correlates of high-level
speech comprehension, strengthening the conclusion
that activations in response to semantically ambigu-
ous words indicate awareness.36
That said, these paradigms still lack a degree of
explanatory power because their tasks are passive.
Philosophical questions aside, the best way to deter-
mine if someone possesses consciousness is to elicit
behavioral evidence of it. Two recent EEG investiga-
tions used active paradigms in an attempt to demon-
strate volitional brain activity in behaviorally silent
patients. First, patients in a MCS or VS were read
sequences of names and were asked to count the num-
ber of times their own name was said, and only patients
in a MCS showed increased P3 responses.37 In another
case report, the investigators presented a behavior-
ally silent patient with sequences of names and asked
her to count the frequency of a target name, and the
P3 response for this active condition was larger than
while passively listening.38 Thus, the investigators con-
cluded that the patient was in a total locked-in state, on
the basis of this presumed voluntary brain activity. A
total locked-in state is not a disorder of consciousness,
strictly speaking, but because these patients cannot
communicate even by moving their eyes, it does pres-
ent similar problems in terms of communicating with
behaviorally silent patients.39 These EEG studies are
notable for illustrating a possible general method for
to non-instructive sentences that only mentioned the
words “tennis” and “house.”41 Using the same methods
in healthy volunteers, the research group was able to
differentiate between these tasks on the basis of activ-
ity patterns alone,42 making a strong case that the
patient was consciously aware of her surroundings
and able to purposefully follow instructions despite
fulfilling all behavioral criteria for a VS. This method
was recently applied to 54 patients with disorders of
consciousness as part of a collaboration between the
Owen group and Steven Laureys’ group in Liege.43 In
that sample, five patients were able to perform a will-
ful mental imagery task, and on follow-up testing, one
was able to answer basic yes-or-no questions using the
same task (for example, by imagining a motor task for
“yes” and a spatial task for “no”).
Legal Significance
These reports suggest ways in which neuroimaging
methods might be employed in court when end-of-life
issues are in dispute. Many states have enacted stat-
utes to address end-of-life surrogate decision-making,
advance directives, or both. These statutes typically
contain quasi-operationalized definitions of “perma-
nent unconsciousness” or VS, which often do not cor-
respond to the current clinical understanding of these
diagnoses.44 Case law offers no clarity, as there has
been much confusion in courts about the definition of

law, science, and innovation: the embryonic stem cell controversysummer 2010 377
IND EPEND ENT

persistent or permanent VS.45 The overall result is a
proliferation of state-law definitions of unconscious-
ness that vary greatly, when they are present at all.46
These definitions are often important in cases of
end-of-life surrogate decision-making or advance
directives. Statutes in almost all states in the United
States authorize surrogates to make end-of-life deci-
sions, and most statutes restrict the decision to with-
hold or withdraw artificial nutrition by a surrogate
to situations in which a patient is in a “permanently
unconscious” state.47 Far from a binary distinction
between awareness and unawareness, the many defi-
nitions of unconsciousness found in statutory schemes
include a multitude of different criteria belonging to
separate cognitive domains. We summarize the exam-
ples that follow to suggest a taxonomy of state-law
definitions of consciousness, organized by cognitive
domain (Table 1).48 Even in the absence of statutory
guidance on this point, in case law the diagnosis of
VS has been determinative of the question of forgo-
ing life-sustaining treatment.49 The finding of uncon-
sciousness is similarly relevant to the interpretation of
advance directives. Thus, we can imagine several sce-
narios in which neuroimaging disorders of conscious-
ness might enter the courtroom.
Challenging a Conventional Diagnosis of
Vegetative State
First, one might challenge a conventional, behavioral
diagnosis of permanent VS on the basis of neuroim-
aging data. If the status of a patient’s diagnosis is
disputed, evidence of brain activity could have great
impact in court, for example, by making the argu-
ment that someone’s “actual” cognitive state does not
match observed behaviors. As suggested by the sci-
entific reports reviewed above, there are several ways

Table 1
A Taxonomy of State Law Definitions of Unconsciousness100

Domain Examples

Higher cortical activity “Higher cortical function” (ID, WV)

“Neocortical functioning” (SC)
“All the functions of the cerebral cortex” (WI)
“Higher cortical and cognitive function” (ME)

Thought “Thought” (AR, IL, NH)

“Cognitive thought” (AL)
“Cognitive behavior” (FL)
“Cognitive functioning” (WI)

Self-awareness “Awareness of self” (AL, AR, CT, GA, ID, IL, NH, OH, OR, WV)

Environmental awareness “Awareness of environment” (AL, AR, CT, GA, IL, ID, MD, NH, OH, OR, WV)

Communication “Communication” (FL)

“Social interaction” (AL, IL)
“Interact purposefully with environmental stimulation” (FL, SD)
“Capacity for interaction with the environment” (NJ, PA)
“Capacity for cognitive interaction with the environment” (DE, NE)

Sensation “Sensation” (AL, AR, IL)

“Feeling” (AR)
“Capacity to experience pain or suffering” (OH)

Action “Purposeful action” (AL, IL)

“Behavioral response to environment” (CT, GA)
“Voluntary action” (FL)

Movement “Purposeful movement” (SD)

378 journal of law, medicine & ethics


that data from neuroimaging or electrophysiological
investigations could be used to argue against a clinical
diagnosis of VS according to state-law definitions of
unconsciousness.
Starting with the weakest possibility, someone chal-
lenging a diagnosis of permanent VS could simply
show general activations on PET or fMRI, similar to
the earliest investigations of disorders of conscious-
ness. These studies were not intended to argue for or
against consciousness in single patients, of course, but
because some state-law definitions of unconsciousness
are vague, weak evidence such as this could actually
refute a legal definition of unconsciousness in certain
jurisdictions. Under some statutes, the only specific
criterion for unconsciousness is a lack of higher corti-
cal activity: “lacks higher cortical and cognitive func-
tion,”50 “no neocortical functioning,”51 or “no higher
cortical function.”52 A strict interpretation of these
statutes could take general and nonspecific cortical
activations as evidence against a state-law definition
of unconsciousness.
On the other hand, the most convincing test for
consciousness would be to assess responses to an
active task like the imagery task of Owen and col-
leagues, which implies that patients could act on their
own volition.53 This result would more clearly meet
a “higher cortical activity” criterion. Other statutes
name additional criteria in their definitions of uncon-
scious states, and subjects successfully performing the
volitional imagery task appear to possess most of these
as well, though there is much room for interpretation.
First, subjects performing this task seem to demon-
strate evidence of “thought”54 or “cognitive function-
ing”55 in a similarly general sense. Many states require
“awareness of self ” or “environment,”56 which would
necessarily be demonstrated by patients responding
to sensory commands by imagining a self-referential
activity. It would be harder to establish that these
patients are engaging in “communication”57 or “social
interaction,”58 though one might argue that simply
receiving commands from others and responding in
an observable way is communication. One statute59
requires “purposeful movement,” which seems to
require physical movement, while a requirement for
“cognitive behavior” appears to be met by a volitional
imagery task.60
This distinction between “behavior” and “move-
ment” is a fine one. For example, some states61 require
“behavioral evidence of self awareness” rather than
“awareness of self ” alone. Likewise, Georgia requires
“behavioral evidence of awareness of surroundings”
rather than “awareness of environment.”62 In both
cases, the precise meaning of “behavior” is unclear.
While it might seem odd to call an imagery task with
law, science, and innovation: the embryonic stem cell controversysummer 2010
Fisher and Appelbaum
no outward physical sign a “behavior” or “action,” suc-
cessful performance of this task indicates that subjects
are selectively and voluntarily modulating their neural
activity. In other words, while one would not be physi-
cally responding to environmental stimuli outwardly,
by following the instructions he or she would still be
acting in an observable way, which qualifies as behav-
ior. Thus, these subjects also appear to be perform-
ing a “purposeful action,”63 or exhibiting a “behavioral
response to the environment.”64
The interpretation of neuroimaging results is yet
more difficult if a task occupies a middle ground
between these two approaches. If a family member’s
speech activated a patient’s brain areas involved in
emotional processing, arguably this would demon-
strate “higher cortical activity” more convincingly
than general activations at rest.65 This paradigm could
also provide evidence for “environmental awareness,”
as would visual stimuli that activated face recognition
areas, or sentence stimuli that activated language net-
works.66 One statute requires the “capacity to experi-
ence pain or suffering”67 and three others require “sen-
sation”;68 this could be tested with noxious stimuli,
though a previous trial of VS patients failed to show
responses in secondary somatosensory or higher-level
association areas in response to pain.69 The interpreta-
tion of “thought” or “cognitive activity” is difficult in all
of these cases, but evidence of processing ambiguous
sentences in a progressive language paradigm makes a
reasonably strong case for these capacities.70 Overall,
these tests would have far more explanatory power if
it were shown that sedated volunteers — who presum-
ably lack consciousness — did not show cortical acti-
vations to the same paradigm, as has been shown in
the case of the ambiguous sentence processing para-
digm.71 On the face of it, none of these tests are suffi-
cient demonstrations of a “behavioral response,” “pur-
poseful action,” or “interaction,” which some statutes
require.72
Informing Advance Directive Decisions
Similarly, neuroimaging could be used to clarify a
patient’s diagnosis according to an existing advance
directive or living will. Sample living wills are often
included in advance directive statutes, and many
include their own definition of “permanent VS” or
“permanent unconsciousness” in common-language
terms. For example, one statute includes the following
language:
Permanent unconsciousness is when my doctor
and another doctor agree that within a reasonable
degree of medical certainty I can no longer think,
379
IND EPEND ENT
feel anything, knowingly move, or be aware of
being alive.73
In general these colloquial terms correspond with the
formal definitions of “permanent unconsciousness” or
“permanent VS” in advance directive statutes; how-
ever, there are often discrepancies that have impli-
cations for the interpretation of neuroimaging find-
ings. For example, in Alabama the sample living will
language includes the ability to “knowingly move” as
Since they were conceptualized, disorders of
consciousness have necessarily been diagnosed
on the basis of physical examination alone, but
new neuroscience paradigms may soon be applied similar to the response boards used
more widely to demonstrate environmental- and
self-awareness in VS patients or to show evidence
for voluntary activity.
a criterion that must be absent in permanent uncon-
sciousness, but the corresponding criterion from the
statute’s definition section is “purposeful action.”74 As
discussed above, the distinction between “action” and
“movement” could be crucial when patients do not ini-
tiate outwardly observable motion but show evidence
of brain activity — a mental imagery task response,
while not a movement, could be considered an action.
Furthermore, as the public fascination with neu-
roimaging continues to grow, individuals might begin
to include neuroscience terms in their own advance
directives. Some statutes already define unconscious-
ness solely in terms of brain function, so it is not diffi- one is not yet ready to die, could lead a person to do
cult to imagine patients couching their advance direc-
tives in the language of neural function, either because
they feel such language will be more specific and
diagnostically accurate, or simply because of the pen-
etrance of these concepts. Moreover, given the front-
page attention these findings have attracted recently,75
it is not unimaginable that some advance directive
writers are explicitly naming fMRI or PET findings as
a component of their diagnosis in end-of-life decision-
making. That said, to our knowledge, no examples of
this development have been reported.
Communicating Directly with Patients
Finally, neuroimaging methods might be used to per-
mit two-way communication with patients who lack
the means to express themselves outwardly. For exam-
ple, one could envision a patient being asked to imag-
380
ine playing tennis if he wants to be removed from life
support. Even if an imagery task were taken to indi-
cate an intact consciousness, it is almost impossible
to imagine a situation in which a patient’s capacity to
make such a decision could be reasonably established
for several important reasons: all questions would
have to be posed as binary yes/no or either/or choices;
the determination of proxy answers would be time
consuming; and opportunities for follow-up questions
would be limited. That said, if such methods were
adapted for electrophysiological
studies, like EEG, they might provide
the opportunity for more immediate
feedback, enabling quick follow-up
questions and perhaps even open-
ended answers through something
with patients in a locked-in state.
At this time the utility of such an
approach has not been established,
but the active electrophysiological
paradigm reviewed above76 at least
suggests the possibility of an active
paradigm with near-instantaneous feedback, which
might enable a limited form of communication.
A further limitation of this technique comes from
inherent human difficulties in controlling the content
of thoughts. Mental imagery may not be a fully reliable
surrogate marker for voluntary choice because people
do not have absolute control over what they imagine,
even in a controlled experimental situation. Dan Wegn-
er’s seminal work on thought suppression has shown
that attempts to suppress a prompted thought may
paradoxically increase the frequency of that thought.77
Thus, trying hard not to think about tennis, because
exactly that — with fatal results.
Discussion
Since they were conceptualized, disorders of con-
sciousness have necessarily been diagnosed on the
basis of physical examination alone, but new neuro-
science paradigms may soon be applied more widely
to demonstrate environmental- and self-awareness in
VS patients or to show evidence for voluntary activity.
These tests have important implications for medical
and legal practice, as such evidence could be used to
challenge a traditional diagnosis of VS in court, invok-
ing the criteria outlined in state-law definitions of
consciousness. Several caveats and points of broader
discussion follow.
journal of law, medicine & ethics

Scientific Considerations
Although the volitional imagery task appears to sat-
isfy clearly most states’ criteria for consciousness,
there are a number of limitations to the interpreta-
tions of fMRI activation patterns, both methodologi-
cal and conceptual.78 We restrict our discussion to the
limitations of fMRI rather than PET, EEG, or other
technologies because, for reasons mentioned above,
fMRI is currently the predominant technology used
for investigating disordered consciousness.79 Many of
the limitations discussed below are at least analogous
to those associated with other technologies.
First, the raw data of fMRI are subject to many lay-
ers of analysis that are difficult for any non-statistician
to appreciate fully. The vivid graphics that result only
appear as such after intensive image processing and
statistical design, and hence could be manipulated
to highlight or underplay differences between brain
regions.
Further problems derive from the physical nature of
the signal on which fMRI relies. fMRI measures the
blood-oxygen-level-dependent (BOLD) response — an
estimate of the degree of oxygenation of the blood in a
particular part of the brain. As such, it is not a direct
measure but only a surrogate signal for neural activity,
and its spatial specificity and temporal response are
constrained by physical and biological limitations of
the MRI machine’s engineering and the brain’s blood
flow dynamics. Furthermore, because cortical sig-
nals are highly interconnected and the BOLD signal
measures the activation of large groups of neurons
without distinguishing between excitation and inhi-
bition, large changes in metabolic activation could be
seen without an overall change in the excitability of
the brain region. In fact, the actual brain functions
underlying some BOLD activations could reflect a net
inhibition of brain activity, as the actual “activity” of
a brain region could be to downregulate activity in
another brain region or network or lower the prob-
ability of that region’s future activity.
Furthermore, at the interpretive level, it is not
always reasonable to assume that because a brain area
is active, a commonly associated cognitive function is
engaged. The process of reasoning backward from the
presence of brain activation to infer the presence of a
cognitive function is called “reverse inference.”80 This
logical error takes the following form: (1) in past stud-
ies, when cognitive process X was being performed,
brain area A was active; (2) in the present exami-
nation, brain area A was active; (3) thus, cognitive
process X was being performed in this examination.
Especially when the prior probability of that cogni-
tive process being present is low, such as when there
law, science, and innovation: the embryonic stem cell controversysummer 2010
Fisher and Appelbaum
is a lack of behavioral evidence, this conclusion is not
deductively valid.
Finally, even with all of the above caveats in mind,
imaging of the injured brain may be markedly different
from results in healthy brains. The underlying pathol-
ogy, whatever it may be, could change the nature of the
fMRI signal in unexpected ways.81
On the other hand, given the nascent stage of this
field, the absence of evidence for consciousness using
current paradigms should not be interpreted as a proof
of unconsciousness. Even if the volitional imagery task
failed to show activations, well-controlled passive par-
adigms or other techniques yet to be developed might
demonstrate the possibility of preserved sensation or
perception, which in turn could be sufficient to meet
a clinical or legal definition of consciousness. There
are a number of logically supportable motivations for
using passive stimuli paradigms, even though they do
not have the explanatory power of the volitional imag-
ery paradigm: some patients might lack the capac-
ity for imagery but retain other cognitive capacities;
some state-law definitions of unconsciousness are not
as stringent and do not require behavioral responses;
and a failed volitional imagery task might have sim-
ply failed to detect consciousness when it in fact was
present (a false negative result).
Legal and Policy Considerations
Among the questions that will need to be addressed
as these techniques continue to be refined is: should
this evidence be admissible for the purposes described
in this paper? The admissibility of functional imag-
ing data has been considered widely by the courts
and neuroimaging results have figured in many trials
to date.82 Indeed one study found that over 60% of
expert opinions based on PET or SPECT were ruled
admissible.83 However, it is unclear at the moment
that neuroimaging data to establish the presence of
consciousness would meet either a Frye general accep-
tance test84 or a validity/reliability standard similar to
that of Daubert.85 Judges, who often carry the burden
of determining admissibility according to the Federal
Rules of Evidence and play similar roles under state
law, have a particularly daunting task in decisions of
this sort, considering the rapid advances in the field
of cognitive neuroscience.86 We would suggest that the
validity of neuroimaging data for consciousness deter-
minations, if an attempt is made to introduce such
evidence, should be evaluated rigorously under the
applicable evidentiary standards in the jurisdiction.
Given that members of the public consider descrip-
tions of cognitive neuroscience results more convinc-
ing when neuroimaging results are added to them,87
courts must be mindful of their sometimes unwar-
381
IND EPEND ENT
ranted persuasive power and of the possibility that the
colorful results of fMRI may be introduced more for
their emotional impact than for their probative value.
In addition, if fMRI technology were to be applied in
a legal context, then a range of procedural issues will
also need to be decided. These include who should be
entrusted to perform the studies and whether all par-
ties are responsible for reporting the methods used
in neuroimaging investigations and the raw imaging
data in addition to the analyzed results.
At a legislative level, it seems clear that many state-
law criteria for consciousness embody inadequate or
imprecise definitions, such as “higher cortical activ-
ity,” that do not clearly map onto current clinical
understanding. The inherent imprecision of terms
like “behavior,” “awareness,” and “action,” which now
appear frequently in laws governing termination of life
support and advance directives, should be recognized,
and statutes should be revised for greater clarity in the
context of modern neuroscientific advances. Simple
terms like “behavior” and “function” are not adequate
formalizations of mental processes for use in a legal
context. Statutory law is not unique in containing
many competing definitions of consciousness, consid-
ering the similar proliferation of terms in philosophy of
mind and cognitive science. Many of these definitions
are confusing to apply because of the implicit collo-
quial meanings attached to them. The language used
to describe neuroscience findings, especially those in
ordinary, everyday usage like “awareness” and “wake-
fulness,” must be clearly defined for a specific context;
otherwise the presuppositions of their old meanings
and “folk psychology” understandings of mental pro-
cesses will carry forward to confound the debate.88
Current statutory definitions may be particularly vul-
nerable to this contagion.
In pursuing updated statutory language, this analy-
sis suggests that drafters of new legislation should
define the actual functions and behaviors they con-
sider most important to end-of-life decision-making,
instead of referencing “brain activity” itself or some
similarly nonspecific term. If they believe that con-
sciousness should be determined solely by outwardly
observable behaviors, they should take care to distin-
guish physical from mental behaviors in their defini-
tions. In contrast, if they are concerned that covert
awareness might persist in the absence of behav-
ioral signs, neuroimaging evidence for the preserva-
tion of specific brain functions could be considered.
New developments will profoundly inform this pro-
cess as this rapidly advancing field gains explanatory
power, as will the prevailing cultural values in a given
jurisdiction.
382
If any further reason is needed for statutory clarifi-
cation in this area, it might come from the odd conse-
quence of this current variability and indeterminacy:
by crossing state lines, an unconscious patient might
suddenly become conscious, at least according to
prevailing law. Someone legally unconscious in New
Hampshire because of a lack of “awareness of self ”
and “awareness of environment,” for example, would
be legally conscious in neighboring Maine simply if
“higher cortical function” were demonstrated by one
of the techniques described above.89 This remarkable
inconsistency alone should be sufficient to motivate
clearer and more consistent formulations of these
statutes.
Ethical and Philosophical Considerations
The neuroscience advances described in this paper
raise a dizzying number of broader issues related to
selfhood and the moral status of humans in various
states of health and disease. First, focusing on a voli-
tional task to determine consciousness leads the debate
away from phenomenal experience, which some have
asserted is the aspect of consciousness that is most
morally relevant.90 By this reasoning, the qualitative
character of an experience, what “it is like” to be in a
given state, is the most important component to what
makes life worth preserving. Law in many jurisdic-
tions in the United States seems to consider phenom-
enal experience important, as the balance between
burdens and benefits for persons in VS is calculated
differently under the assumption that these patients
do not have conscious experiences.91
Referencing the distinction between phenomenal
and access consciousness, Levy and Savulescu have
argued that if patients possess phenomenal con-
sciousness (i.e., they have experiences with a “quali-
tative character” to them), then their welfare mat-
ters because the states they experience have intrinsic
moral value: e.g., pain, relief, boredom, and so forth.92
These authors, however, consider this a “low grade” of
moral status, and argue that it may not be sufficient to
justify the inviolable right to life usually accorded to
persons.93 Instead, they argue that patients with disor-
ders of consciousness do not qualify for full moral sta-
tus as persons without “a sophisticated kind of access
consciousness” that includes an ability to appreciate
an ongoing series of experiences, “to recall one’s past,
to plan, and to have preferences.”94
A similar line of reasoning concludes that VS
patients may not have interests in any sense, in which
case distributive justice concerns (i.e., consumption of
resources for their care that might be used to meet the
needs of sentient persons) might suggest they should
be allowed to die; and, even if they do have enough
journal of law, medicine & ethics

Many state definitions of consciousness, as
outlined above, refer to “self-awareness” or
“awareness of self,” but it is unclear whether
these definitions should be taken to refer
to the simpler or more complex varieties of
personal awareness.
awareness to possess interests, the desire not to suffer
is likely predominant, leading to the same conclusion.95
Indeed, some ethicists argue that higher levels of con-
sciousness might be less desirable for certain patients,
in that consciousness of continued suffering without
any means to express oneself might be a fate worse
than death.96 Empirical reports of the quality of life in
locked-in syndrome suggest great caution in drawing
conclusions about the desires of non-communicative
patients, however. One survey of locked-in patients
found that self-scored perceptions of well-being and
distress were not significantly worse than those of age-
matched controls.97 A recent paper also presented data
arguing that the quality of life of locked-in patients is
not predicted by their physical state, and, in an addi-
tional finding with clear relevance to surrogate deci-
sionmaking, primary caregivers rated patient quality
of life lower than did the patients themselves.98
The investigations described above are better suited
for simple questions of perception than the more com-
plicated aspects of self-consciousness that have been
outlined in the philosophy of mind literature. These
concepts include self-recognition, awareness of sub-
jective experience, and autobiographical knowledge.
Many state definitions of consciousness, as outlined
above, refer to “self-awareness” or “awareness of self,”
but it is unclear whether these definitions should be
taken to refer to the simpler or more complex varieties
of personal awareness.
Furthermore, the notion of ascribing consciousness
to a single “neural correlate” or even a set of neural
activations raises the specter of a unitary homun-
culus observing a “Cartesian theater” in the brain.99
This dualistic formulation is problematic because of
the impossibility of infinite regress (who is watching
the homunculus’s theater?). Given that most cogni-
tive processes appear to be widely distributed in the
brain, a specific neural activation pattern should not
be reductively accepted as the sole marker for “con-
sciousness” in a general sense. The main strength of
the volition task may be that it sidesteps this problem
by studying activation patterns as outputs of higher-
level conscious processes, rather than as correlates of
consciousness itself.
law, science, and innovation: the embryonic stem cell controversysummer 2010
Fisher and Appelbaum
Dualistic understandings of mental pro-
cesses are likely present in society to varying
degrees. In some ways, the heterogeneity
of statutory definitions for consciousness
reflects a broader conflict in competing
public understandings of the brain/mind
relationship. The great variance across
state definitions might reflect different
regional beliefs about this relationship,
or these inconsistencies could be entirely
random; this is an empirical question and would be
valuable for future investigators to probe. It is certain,
however, that people of different cultural and religious
beliefs will have passionate views on the topic, and that
future end-of-life disputes, if and when they incorpo-
rate neuroimaging data, will only continue to bring
these underlying disagreements into sharper contrast.
If there is to be any chance of approaching consensus
on the topic, humility, open-mindedness, and respect
are necessary.
The overall purpose of this paper is to highlight
and anticipate areas of confusion in the application
of neuroimaging to legal tests of consciousness. This
analysis may aid in the interpretation of relevant end-
of-life statutes in the near future, but more impor-
tantly, it suggests the need for clearer definitions of
consciousness in a legal context. In the end, states may
be tempted to dodge the more difficult questions of
“consciousness” entirely and enact end-of-life statutes
that follow the clinical definitions of disorders of con-
sciousness that rely on outwardly observable behav-
iors. If they do, however, they should be aware that
they could be overlooking a population of patients who
are aware but behaviorally silent, a group whose status
is likely to become increasingly the focus of legal and
ethical attention.
Acknowledgements
Many thanks to Lisa Kerr for her gracious help during the research
phase of this paper and to the anonymous reviewers for their help-
ful comments.
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the Federal Rules of Evidence,” American Journal of Law &
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83. N. Feigenson and J. Park, “Emotions and Attributions of Legal
Responsibility and Blame: A Research Review,” Law and
Human Behavior 30, no. 2 (2006): 143-161.
84. Frye v. U.S., 293 F. 1013 (1923).
85. Daubert v. Merrell-Dow Pharmaceuticals, 509 U.S. 579
(1993).
86. L. S. Khoshbin and S. Khoshbin, “Imaging the Mind, Minding
the Image: An Historical Introduction to Brain Imaging and
the Law,” American Journal of Law & Medicine 33, nos. 2-3
(2007): 171-192.
87. D. P. McCabe and A. D. Castel, “Seeing is Believing: The Effect
of Brain Images on Judgments of Scientific Reasoning,” Cogni-
tion 107, no. 1 (2008): 343-52.
88. M. R. Bennett, D. Dennett, P. Hacker, and J. Searle, Neurosci-
ence and Philosophy: Brain, Mind, and Language (New York:
Columbia University Press, 2007); P. M. Churchland, “Elimi-
native Materialism and the Propositional Attitudes,” Journal of
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89. Neb. Rev. Stat. § 20-403(6) (West 2009); Me. Rev. Stat. Ann.
tit. 18-A § 5–801(s) (West 2009).
90. G. Kahane and J. Savulescu, “Brain Damage and the Moral
Significance of Consciousness,” The Journal of Medicine and
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370.
93. Id., at 367.
94. Id., at 368. Note that this conception of access consciousness
(originally defined as the state of having mental information
available for reasoning, the control of action, and reporting,
see Block, supra note 15) also invokes the issues of chronicity
and prognosis, which, while beyond the scope of this paper,
may have significant ethical and legal relevance. For example,
the fixed futility of the vegetative state is one of the founda-
tional justifications of right-to-die movement in the United
States, as reviewed in J. J. Fins, “The Ethics of Measuring and
Modulating Consciousness: The Imperative of Minding Time,”
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95. See Wilkinson et al., supra note 4.
96. See Skene et al., supra note 3.
97. See Laureys et al., supra note 39.
98. D. Lulé, C. Zickler, S. Häcker, M. A. Bruno, A. Demertzi, F.
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339-351.
99. D.C. Dennett, Consciousness Explained (Boston: Little, Brown
and Co., 1991).
100. AL: Ala. Code § 22-8A-3(10) (1975); AR: Ark. Code. Ann. §
20–17–201(6) (West 2009); CT: Conn. Gen. Stat. Ann. § 19a-
570(10) (West 2009); DE: Del. Code Ann. Tit. 16, § 2501 (r)
(1) (West 2009); FL: Fla. Stat § 765.101(12) (West 2009); GA:
Ga. Code Ann. § 31-32-2(13) (West 2009); ID: Idaho Code
Ann. § 39-4502(10) (2009); IL: 755 Ill. Comp. Stat. Ann.
40/10 (West 2009); MD: Md. Code Ann., [Health-Gen.]
§5-601(q) (West 2009); ME: Me. Rev. Stat. Ann. tit. 18-A §
5–801(s) (West 2009); NE: Neb. Rev. Stat. § 20-403(6) (West
2009); NH: N.H. Rev. Stat. Ann. § 137-J:2(XVII) (2009);
NJ: N.J. Stat. Ann. § 26:2H-55 (West 2009); OH: Ohio Rev.
Code Ann. § 1337.11(V) (West 2009); OR: Or. Rev. Stat §
127.505(19) (West 2009); PA: 20 Pa. Cons. Stat. Ann. § 5422
(West 2009); SC: S.C. Code Ann. § 44–77–20(7) (1976); SD:
S.D. Codified Laws § 34–12D-1(7) (2009); VA: Va. Code Ann.
§ 54.1–2982 (West 2009); WI: Wis. Stat. Ann. § 154.01(5m)
(West 2009); WV: W.Va. Code § 16-30-3(s) (West 2009).
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