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    Is Harm to a Prosthetic Limb Property Damage or Personal Injury?

    Written by Luke Robert Mason

    According to the law, you and your cell phone are two separate entities. No matter how reliant you might feel on the small, glowing rectangle in your pocket, the distinction is clear: you are a person and your phone is your property. In the same way, the law also sees a separation between a person who is using a prosthetic (such as a bionic limb) and the device itself.

    But as new types of prosthetics become available, and the integrations between man and machine become more intimate, the traditional distinctions the law makes are being questioned. This occurred most recently at the University of Oxford’s Human Enhancement and the Law: Regulating for the Future Conference, which explored the legal issues that might arise as a result of developments in human enhancement technologies.

    "Legal responses to damage [of a prosthetic] that treat it simply as property damage may be inadequate"

    “The legal system provides strong protections for a person’s bodily integrity. By comparison, damage to prosthetic limbs and other non-biological components are likely to be dealt with as property damage,” claim Imogen Goold, Cressida Auckland and Hannah Maslen in a new working paper. But this could be set to change. Their work, supported by the Arts Humanities Research Council (AHRC) Funded NeuroLaw Project, is exploring potential lacunas (holes in the law) and if we might ever need to expand our notions of “personal injury” to include damage to prosthetics and other technologies that some humans have become reliant on.

    Today’s prostheses are increasingly integrated with the body and can often be activated by electrical signals from muscles, with more radical examples including direct skeletal prosthesis or “osseointegration” (i.e. a prosthetic that is permanently fused to the bone marrow of the amputee.)

    The Oxford-based research team points to a new wave of technologies such as those being developed at Johns Hopkins’ Applied Physics Laboratory. These devices are more “deeply integrated” with the physical body, having been developed alongside advances in neurotechnology, and could enable the user to mentally control their bionic limbs and receive sensory feedback from them.

    In their paper Goold, Auckland and Maslen state that, “[I]t is difficult to accurately predict the directions of current research, but it seems clear that prosthetics and implants will improve and become even more integral to the persons for whom they remedy lost functions and capacities.”

    As such, the law might need to consider classifying interferences with prosthetic devices in a similar way to assault, battery and invasions of bodily integrity. They argue that, “Legal responses to damage [of a prosthetic] that treat it simply as property damage may be inadequate to fully reflect the wrongdoing, or to compensate that harm.” The difference in sentencing, for example, is stark. “Currently criminal damage to a (detached) prosthetic arm worth less than £5000 may attract up to a 3-month custodial sentence. Damage to a biological arm would be classed as assault occasioning actual bodily harm at the least (maximum 3 years custody) and, depending on the extent of the injury […] could attract far lengthier prison terms.”

    In the absence of case law related to these specific issues, the courts might struggle in re-categorising prosthetics since these devices, no matter how integrated they are, are not “biologically human.” They are constructed devices that do not contain the person’s DNA. They were not part of that person at birth. They are also replaceable.

    "It is still mine even though it’s a piece of plastic and metal."

    Goold and her team highlight a challenge to this: In some cases, integrations could be considered not only physical and technological, but also psychological. In a 2008 report, researchers led by Adam Saradjian shared some of the subjective experiences of amputees living with prostheses. “Over the years you just get used to them. It’s just like a part of your skin,” one said. Another commented, “I’ve never thought of it. I just think that it’s my arm.”

    For these individuals, the prosthesis returns a sense of “wholeness” a “profound embodiment” which is expressed when, as one individual in Saradjian’s study shares, “amputees feel that their artificial limb is somehow part of them, a simple example of this is that I wouldn’t like just anyone putting their hand on my artificial knee, even though it is not actually part of my body’s flesh, it is still mine even though it’s a piece of plastic and metal.”

    When prostheses are treated in this way, perhaps they should be considered part of the the “living self”—a body that is otherwise protected by assault, battery, rather than by laws protecting against property damage. Goold told me, “It is important to think about what happens when this eventually comes up. There are currently no sufficient rules to compensate people for possible psychiatric harm, but it will be important to recognise and understand these harms so ensure individuals are compensated sufficiently.”

    The subjective responses to these sorts of devices has been challenged in the courts before, in the case of full-body prosthetics. In October 2009, Mr. Collins, a veteran quadriplegic, had his powered mobility assistive device (MAD) damaged by an airline. He was dependent on this device for travel and to protect him against hypotensive episodes. The irreparable damage caused to the device left him bedridden for 11 months while he awaited a replacement. His reliance on the MAD meant that he was unable to independently go about his daily routine and had to hire people to run these errands on his behalf.

    Despite this, the airline would only offer compensation of up to $1500—which covered the replacement value of the MAD. The attorney of record on the case, Linda MacDonald Glenn noted, “To the airline, the accident was akin to damaging his car.” In a paper on the subject she wrote, “[the airline] was not aware of the difference between a wheelchair and MAD. [They] kept asking why Mr. Collins could not use a manual wheelchair.” Finally, after a video demonstration, Glenn “helped to explain that the MAD was a prosthetic and operated as an extension of Mr. Collins’ body, functioning as his lower limbs and lower torso muscles. […]. The MAD was an extension of Mr. Collins; by harming his MAD, the harm extended to Mr. Collins.”

    "Our lawmakers and policymakers need to consider the impact of personhood-property boundaries changing."

    The case of Mr. Collins highlights the limitations in the law whereby compensation for property damage is focused on replacement value. Eventually, the airline awarded Mr. Collins $20,000 in damages.

    Today the law struggles to classify the range of people who might (either through need or choice) add machine functionalities and capabilities to their body and mind. “We will continually incorporate more and more computer technology into our lives, and ourselves, until we become one with it,” Glenn told me. “Our lawmakers and policymakers need to consider the impact of personhood-property boundaries changing.”

    “Interactive prosthetics are changing who we are, physically,” she added. “Who would Stephen Hawking be without his assistive devices?”

    As the distinction between the living and the prosthetic body is eroded, new questions are going to be faced, and the law will need to be as malleable as our future bodies.