Philipp Dominik1
Andreas G. Franke- 1Institute for Criminal Law and Criminal Procedure Law, University of Cologne (UoC), Cologne, Germany
- 2Department of Psychiatry and Psychotherapy, Ludwig Maximilian University (LMU), Munich, Germany
- 3University of Applied Labour Sciences, Mannheim, Germany
Pharmacological neuroenhancement (PN) describes the use of divergent psychoactive substances to enhance mental performance (cognition) without medical need. This kind of substance abuse takes place predominantly in stressful situations. Users implicitly—or even explicitly—describe this kind of drug abuse to be a coping strategy. Regarding the decision making process whether to use PN drugs or not, users indicate that legal aspects to be decisive. However, the legal situation has been neglected so far. To elucidate the German legal situation, PN substances have to be divided into over-the-counter drugs, prescription drugs and illegal drugs. Amphetamines have the highest cognition-enhancing potential, followed by modafinil and caffeine-containing substances. It is pointed out that the use of both freely available and prescription PN substances and narcotics without medical indication have so far been largely exempt from punishment under German law. However, individuals (physicians, bus and truck drivers, etc.) taking PN substances may expose others at risk due to wrong decisions (driving or treatment), errors based on side effects of the used substances. Therefore, the protection of life and health of others could legitimize criminal regulation.
Introduction
The age-old dream to increase human performance seems to become true for mental performance due to recent pharmacological developments. Mental performance enhancement is described with various terms such as “Pharmacological Neuroenhancement” (PN), “Brain Doping,” or “Academic Performance Enhancement” (1–3). The corresponding substances are often referred to as “smart drugs” (1, 4). Except from technically elaborated experimental approaches such as (magnetic) brain stimulation via huge laboratory “machines,” the pragmatic and easier way to increase mental performance is delivered via the use of substances (5–7). Some of these substances are well-known to be drugs of abuse and addiction.
Klaus Lieb and Andreas G. Franke and the many other scientists belonging to the research field of PN define the latter as the use of specific substances by healthy individuals to increase mental performance without any medical need and therefore without any medical indication (5–8). Specific aims of this use are to increase cognitive domains such as vigilance, attention, concentration and memory. However, even the attempt to increase motivation and mood, or attempts to appear more intelligent to others or even to “be smart” falls under the definition of PN. The latter is sometimes also referred to as mood enhancement (3).
The motivation for the use of PN substances usually originates in the desire for a more intensive use of one's leisure time, which is aimed to be achieved by attempting to reduce or condense working hours and achieving (professional) goals in a shorter time (9) being underlined by divergent studies (6, 10–13). Therefore, PN is often considered to be a coping strategy that has been underlined in national (Germany) and international studies (13–21)—a coping strategy by the use of drugs that can lead to abuse and/or addiction.
Multiple studies underline the character of PN to be a coping strategy. A representative survey in Germany examined the professional situation of workers (14). It showed that participants felt psychological stress from the “circumstances” of their work (e.g., workload, multitasking, pressure to perform, etc.). Furthermore, data was collected on recovery strategies showing an increasing demand both in a professional and private environment (15). Eight percent of the surveyed 2,000 participants reported using prescription drugs to “unwind” and 12% to cope with the needs mentioned above.
Already in 2009, one of the largest German health insurance companies introduced this topic with a focus report on “Doping at work” (22, 23): According to the report of 2009, 5% and in 2015 even 6.7% of the surveyed employed persons between 20 and 50 years of age admitted to use prescription drugs to enhance cognitive performance or mental wellbeing without indication. In addition, many of the surveyed participants stated that PN was justifiable for occupational needs. The authors of the study estimated the number of unreported cases at 12.1%.
Studies using survey techniques to increase anonymity (internet-based, anonymization techniques) show prevalence rates of up to 20% use of prescription and illicit drugs among students, surgeons, “white collar workers” and readers of Nature magazine (6, 12, 24, 25). In addition, several studies showed that PN substance use is a coping strategy for perceived stress (12, 26, 27).
Interestingly, an older study demonstrated clearly that legal aspects such as punishment are crucial for the decision whether or not to use prescription and/or illegal PN medicines (28). However, the legal situation in Germany has not been analyzed systematically so far.
Therefore, aim of the paper was to (1) review potential and frequently used drugs for PN, (2) demonstrate their clinical and especially pro-cognitive effects and side effects and (3) integrate these drugs in legal categories based on the German legal system. Thus, an integration of PN substance use in legal categories was the predominant aim of this review. To achieve this aim systematically, the manuscript is designed according to the PRISMA guidelines.
Materials and methods
To examine the three above mentioned goals, an intensive study of the literature was performed.
Two of the authors (raters) performed a literature search with the search terms “neuroenhancement,” “cognitive enhancement,” “academic performance enhancement” and “smart drugs” in the natural science data base “pubmed.”
For filtering and to reduce the number of hits, quotation marks were used. Then, only hits were used having an abstract and a full text. For further specification, only studies were included that were published later then 2007. To answer aspect (a) (types of substances) specifically and to address only the above mentioned definition by Lieb and Franke as well as many other scientists investigating PN, all studies about drugs affecting mood and/or moral were excluded. Furthermore, as well as regarding the second aim (b) (pro-cognitive effectiveness), only studies were included that demonstrate pro-cognitive effects and side effects; to explain effects on the molecular level, references were chosen voluntary. In a second step all abstracts were screened by two raters and publications which did not meet the subject (a, b, or c) sufficiently were excluded.
Because a plethora of studies from the field of natural sciences was found and to explain the subject to the reader in a reasonable and comfortable way, only a convenience sample characterizing and demonstrating PN drugs robustly, was cited in this article.
For studying the third aim (c) to integrate and characterize use of PN drugs with respect to legal categories, the German legal databases “juris” and “beck-online” were used and only studies were included which were published after 2008. Therefore, two authors performed a literature search using the search terms “neuroenhancement,” “Selbstdoping,” and “mentale Selbstbestimmung.” Because of different legal systems all over the world, the German situation is not comparable to others. To characterize the latter, only German speaking databases have been searched for legal sources.
Subsequently to the literature search, search results of the two authors were compared and discussed.
Results
When performing the initial search in “pubmed” in sum, n = 56,595 hits/papers were identified using the specific search terms (neuroenhancement, cognitive enhancement, academic performance enhancement, smart drugs). Using filters (quotation marks, only papers containing an abstract as well as the full text, papers between 2008 and today) hits were reduced to n = 746 publications. After having screened the respective abstracts by two raters for the question of being relevant for the subject, n = 322 publications remained. For further details see Figures 1, 2.
Figure 1. Search strategy in “pubmed” for (A) defining substances and (B) show clinical effects. (A) Initial search terms were used, (B) quotations marks were added, (C) only publications were used with abstracts and full text, (D) only publications published later than 2007 were considered.
Figure 2. Search strategy in “juris” and “beck-online” for the search terms “neuroenhancement,” “Selbstdoping,” and “mentale Selbstbestimmung” to find data about legal aspects of PN. (A) Initial search terms were used, (B) quotations marks were added, (C) only publications were used with abstracts and full text, (D) only publications published later than 2008 were considered.
Categories of PN substances
Substances used for PN purposes are a heterogenous group of different substances. Therefore, today's PN drugs can be categorized in different ways (13, 29–31). The following categorizations are based on substance characteristics (13, 31–33) and are used by several scientists with an emphasis on a European and especially German speaking field (3, 8, 11, 13, 25): (1) prescription drugs, (2) illegal drugs, and (3) freely available over-the-counter (OTC) substances or (1) stimulants and (2) non-stimulants (see Table 1) (8). These and other categorisations have been developed years ago. However, they are referred to for PN substance research.
Table 1. Possible classifications of CE drugs.
Considering the above mentioned German categorisations by Lieb and Franke the subdivision into stimulants and non-stimulants, methylxanthines such as caffeine (coffee, caffeinated drinks/energy drinks, and caffeine tablets) make up the greatest percentage of the available stimulants (8). However, stimulants such as amphetamines and cocaine also belong to this group. Whilst caffeine is freely available and contained in various foods and beverages, the latter (amphetamines) are subject to the German Narcotics Act. This group of stimulants has to be divided into the further subgroups illegal (e.g., speed and ecstasy) and prescription stimulants (e.g., Attentin® and Adderall®), as well as the derivative methylphenidate (MPH, e.g., Ritalin®). In comparison to these cocaine plays an insignificant (rarely used) role. The group of non-stimulants consists of prescription drugs such as anti-dementia drugs and OTC substances; these are mainly phytopharmaceuticals such as Ginkgo biloba (for neurobiological details see (33).
From a national (German) legal perspective, a new categorization is mandatory which is based on the German Narcotics Act (Betäubungsmittelgesetz—BtMG) is to be made according to narcotics and other substances (see Table 1C). This is appropriate, as the abuse of a substance is only relevant under criminal law if the substance is covered by the law. Otherwise, due to the principle of “nulla poena sine lege,” which is constitutionally anchored in Article 103 (2) of the German Basic Law (Grundgesetz—GG) and in § 1 of the German Criminal Code (Strafgesetzbuch—StGB), punishment is excluded.
Clinical effects of PN substances
Literature search revealed that measurement for effect sizes was not possible. The present studies used a plethora of different methods to measure (pro-) cognitive effects.
Caffeine
Caffeine is the most common substance used for PN. Although coffee is considered a “normal” part of everyday life (e.g., “coffee break”) and a stimulant, it could be argued that caffeine is not a “true” PN substance. However, caffeine belongs to the group of methylxanthines that have pro-cognitive effects based on randomized control trials (RCTs). Furthermore, in numerous survey studies, the consumption of coffee is rated as PN consumption behavior e.g., (34–38). In addition to coffee, caffeine-containing foods and beverages, including so-called energy drinks (e.g., Red Bull®), are sources of caffeine that are marketed specifically for “modern” consumption. Energy drinks promise the consumer “energizing” effects (39).
Furthermore, Coffeinum® is the only caffeine-containing drug approved for short-term fatigue. Although a prescription is not required, Coffeinum® is only sold in pharmacies and not in supermarkets or drugstores.
The clinical effects of caffeine include tachycardia, hypertension, and bronchial dilation (40). At least in part, these effects may explain the pro-vigilant effect of caffeine. RCTs with different doses of caffeine (50–600 mg) in non-sleep-deprived subjects show that vigilance, attention, concentration and psychomotor activity are increased by the consumption of energy drinks. In sleep-deprived subjects treated with 150–600 mg of caffeine, the effects are even more pronounced. However, the available RCTs show only few and inconsistent effects of caffeine on higher cognitive domains (e.g., memory) (8, 41, 42).
Interestingly, energy drinks (250 ml, 80 mg caffeine, 1.000 mg taurine) seem to have stronger clinical effects than the same dose of “pure” caffeine without other ingredients (8). The reason for this is still unclear but may be due at least in part to a specific marketing strategy (39). A study among surgeons concludes that drinks containing caffeine and taurine bring simulated laparoscopic performance back to the level of the more or less well-rested state. However, a reduction in surgeon error rate was not observed (43).
Compared to other PN substances, the cognition-enhancing effects of caffeine are roughly comparable to the effects of MPH and modafinil (44–46). However, this is dose-dependent. A study among healthy chess (tournament) players shows the following order of effectiveness: methylphenidate > modafinil > caffeine (47).
Amphetamines and methylphenidate
Methylphenidate (MPH, e.g., Ritalin®) and amphetamine products such as Attentin® or Adderall® being a mixture of amphetamine and dextroamphetamine are mainly approved for the treatment of attention-deficit/hyperactivity disorder (ADHD). In addition, AMPHs belong to the group of illegal drugs (e.g., “speed,” ecstasy). Patients need a special prescription under the German Narcotics Act (BtMG) to take drugs containing MPH and AMPH.
RCTs show that AMPHs and its derivative MPH increase vigilance and attention in healthy volunteers, leading to a shortened reaction time. Comparable to those of caffeine, the effects of these drugs are enhanced in sleep-deprived healthy volunteers (3, 8, 48). Similar to caffeine, these enhanced pro-cognitive effects in sleep-deprived participants may lead to the assumption that the pro-cognitive effect on higher cognitive domains such as memory is an indirect effect mediated by an increase in vigilance, attention and concentration (3, 8). However, there are few data that attempt to demonstrate that the pro-cognitive effects are independent of the waking state (sleep-deprived vs. non-sleep-deprived) (49).
A systematic review of MPH in relation to PN in healthy subjects found that the pro-cognitive effect of MPH is difficult to assess due to the heterogeneity of studies and neurocognitive tests used. However, the review found that MPH improved cognitive performance on novel tasks and attention-based tasks and reduced planning latency on more complex tasks (50).
Compared to MPH, AMPH have pronounced effects on vigilance, attention and reaction time possibly due to the mode of action (8). Higher doses of stimulants lead to euphoric effects or at least a better mood (48). In this regard, abuse and dependence on AMPH have long been controversially discussed (51–53).
Modafinil
Modafinil (e.g., Vigil®) is licensed for the treatment of narcolepsy with excessive daytime sleepiness. Depending on the country and its specific regulations, modafinil does (not) require a specific prescription. The clinical effects of modafinil are similar to those of AMPH and MPH leading to increased vigilance, attention and shortened reaction time (8, 48). However, the above-mentioned study among healthy (tournament) chess players shows that MPH has a higher efficacy than modafinil (47). However, interestingly one most recent review denies the pro-cognitive potential of Modafinil (54).
After sleep deprivation, the above-mentioned pro-cognitive effects are pronounced compared to the effects of modafinil in rested subjects (8, 48). A meta-analysis shows a large research gap regarding PN by modafinil. However, using an extensive neurocognitive test battery, the authors show enhancing effects on a few cognitive domains, such as working memory, attentional interference, spatial planning and executive functions (55). An older systematic review shows that modafinil improves attention even in well-rested individuals. However, maintenance of vigilance, memory and executive functions were improved to a significantly greater extent in sleep-deprived individuals. Repeated administration of modafinil did not prevent deterioration in cognitive performance over a prolonged period of sleep-deprivation (49). An older study examined therapeutic doses of modafinil during simulated night shifts and showed attenuation of the cognitive decline associated with night shifts (56). Another important study, using the CANTAB comprehensive neurocognitive test battery and an artificial surgical (laparoscopic) simulation setting, showed that modafinil led to improvements in working memory and planning behavior, a reduction in impulsivity and increased flexibility (57).
In terms of comparison with other stimulants, RCTs show that the pro-cognitive effects of modafinil is equivalent to that of stimulants and caffeine when 400 mg of modafinil is used compared with 20 mg of d-amphetamine and 600 mg of caffeine (44, 45, 58). It should be stressed that 600 mg of caffeine are a very high dose, equivalent to six cups of coffee or three tablets of Coffeinum®. The latter is approved for a maximum of 400 mg per day. Beyond that, an aviation setting seem to underline the results from the chess study mentioned above (47, 48), however, another comparison using an extensive test battery denies the efficacy of modafinil (46).
Beyond that, there seem to be a certain abuse potential or even risk of addiction (54).
Antidementia drugs
The group of antidementia drugs consists of two different mechanisms of action and thus two different types of drugs. Both types of drugs are approved for the treatment of Alzheimer's disease only.
The available studies on antidementives hardly allow for comparisons between the aforementioned antidementives, as the study designs pursue other goals besides PN (45). Moreover, the sparse results of RCTs on PN are inconsistent (3, 8). There is even some evidence of worsening of reaction time and memory by antidementives. RCTs with healthy subjects show that antidementia drugs do not have consistent effects on cognition, neither in terms of vigilance and attention, nor in reaction time or memory (3, 8).
Apart from these study results, antidementia drugs have side effects that are very common (59).
Ginkgo biloba
Ginkgo biloba with antioxidant characteristics of leaves of the Ginkgo tree is used to prevent dementia and when cognitive deficits occur. It is also used to increase cognitive abilities in a population of people over 60 years of age with a high level of education. In this group and for the above-mentioned “indications,” the prevalence is 15% (60).
According to the SmPC (“summary of product characteristics,” also known as medication package insert), in which all aspects of a medicinal product must be described in accordance with regulatory concerns, Ginkgo biloba is approved for peripheral arterial occlusive disease, dizziness of vascular and involutive origin, as well as tinnitus and the so-called “dementia syndrome.” The latter is not synonymous with the term “dementia” and does not correspond to the medical term and definition of “dementia.”
Pro-cognitive effects could not be proven in laboratory studies (61) in accordance with missing clinical effects based large Cochrane meta-analyses; however, there are (almost) no side effects (62, 63). Another meta-analysis came to the conclusion that Ginkgo biloba must be dosed with at least 240 mg per day. This dosage seems to lead to clinical stabilization in demented patients as well as in people with mild cognitive impairment. In addition, ginkgo biloba seem to have the potential to reduce progression of cognitive impairment (64). A most recent “narrative review” does not come to a clear conclusion describing confusing results of divergent studies with different Ginkgo extracts (65).
Ginkgo biloba seems to be an interesting candidate for PN, as it has (almost) no side effects, but little or questionable pro-cognitive effects.
Forensic psychiatric aspects
Drug abuse and addiction play a very large role with respect to aggressive and antisocial behavior, delinquency and acquisitive crime. Many drug users become delinquents. Research has largely focused on opiate addiction. It has been shown that about 20% of prisoners in Germany are addicted to opiates (66). A survey in Berlin prisons showed a prevalence rate of 16% for opiate addiction (67). Similar figures of 18–23% were reported for the USA (68).
The use of psychostimulants, which can lead to disinhibition and aggression, could be forensically relevant. The induction of psychotic and manic states is even reported as a potential side effect in drug product information for psychostimulants.
Criminal legal evaluation
The fact that active substances, which are used for therapeutic purposes only (69), are also used by healthy people for cognitive performance enhancement leads to the question of the assessment of this scenario under criminal law. So far, PN has not been subject to by special regulation in Germany. Therefore, an overview will be given below as to whether the existing norms adequately cover PN use.
As a rule, criminal law can only threaten consequences if a norm of the German core criminal law [German Criminal Code (StGB)] or the supplementary criminal law [criminal norms in other laws such as the German Narcotics Act (BtMG)] makes an act punishable. A fine or prison sentence can only be imposed if an offender commits an act that is punishable at the time of the offense.
The German core criminal law is not applicable to the consumption of any of the substances mentioned above. Especially substances that are freely marketable within the legally prescribed potencies, such as caffeine, taurine, Ginkgo biloba, ginseng, etc., are not covered as the clinically “harmless” effect of these “everyday” preparations is socially accepted. The same applies, for example, to anti-dementia drugs—although these are only available on prescription. Moreover, they are not considered narcotics.
Substances such as AMPH, MPH or cocaine are subject to the German supplementary criminal law due to their significantly higher risk potential (MPH and cocaine in Schedule III and methamphetamine in Schedule II of the German Narcotics Act). However, the consumption as such is not made a punishable offense thereunder either.
More detailed explanations on self-enhancement
From a legal perspective, medicine is facing a profound structural change. Alongside the traditional, altruistic view of medicine's raison d'être, such as healing, palliation or accompaniment, a modern (wish-fulfilling) medicine has developed. Physicians embellish, improve and optimize people (70). The medical ethics enshrined in the Hippocratic Oath prescribe helping the sick (71). The improvement of healthy people leads this maxim ad absurdum.
Bodily injury according to § 223 of the German Criminal Code (StGB)
Although some of the drugs under investigation cause quite considerable side effects, the use of PN is not punishable as a form of bodily harm. The basic offense [§ 223 (1) of the German Criminal Code (StGB)] requires (1) physical abuse or (2) damage to the health of another person (72). If someone harms themselves by consuming PN, no harm is done to others. According to the established case law of the Federal Supreme Court, self-inflicted self-harm is not punishable (73). Punishment would not be compatible with the German Basic Law (GG). The impunity of self-harm is a consequence of the right to self-determination, which is guaranteed in Article 2 (1) in conjunction with Article 1 (1) of the German Basic Law (74).
Negligence offenses
A physician who takes PN to improve his performance is not normally liable to prosecution for a negligence offense (especially negligent bodily injury or homicide). This is because the user assumes that he will improve his own performance by taking it. If he has not had any negative experiences in the past (coordination problems, overestimating himself, etc.), he does not violate his duty of care to treat a patient only if one is physically able to do so. On the contrary, he wants to improve the treatment of his patients.
If an injury nevertheless occurs that can be causally attributed to the substance use, it must usually be assumed that the physician, according to his personal abilities and the degree of individual skill at the time of use, could not have recognized that he was endangering the patient (75).
Fraud according to § 263 of the German Criminal Code (StGB)
The acquisition of PN is also regularly not punishable as fraud. However, many case scenarios are imaginable, therefore no generally applicable result can be formulated.
In most cases, there is no “fact” which would be relevant in the context of fraud (76) about which the user deceives his counterpart (77) and thereby arouses or maintains a misconception (78). Typically, it is assumed that the counterpart has no knowledge that the performance has improved pharmacologically. Mere ignorance of the facts (79) (“ignorantia facti”) does not regularly constitute a misconception. The absence of a conception does not constitute an error; such an error only arises from a misconception (80).
Irrespective of this, there is no causal damage. The employment relationship can be cited as an example. The employer undertakes to pay the agreed remuneration pursuant to § 611a (2) of the German Civil Code (Bürgerliches Gesetzbuch—BGB). If he hires an employee, damage could already occur at the time of the conclusion of the employment contract (81), “if the value of the claim to the work performance falls short of the remuneration agreed for it” (77). Ultimately, however, it must be countered that such damage is of a purely fictitious nature. The criminal law requirement of certainty derived from Article 103 (2) of the German Basic Law (GG) (82) requires that any damage be quantifiable. Moreover, even an average employee could temporarily underperform in comparison to his usual capacity shown in the application procedure. Especially in the field of human performance, a generally valid quantification is hardly possible.
German Anti-Doping Act
Since the introduction of the German Anti-Doping Act (Anti-Doping-Gesetz—AntiDopG) on 10 December 2015, the area of sport has been regulated. § 3 para. 1, § 4 para. 1 no. 4 of the German Anti-Doping Act punish the athlete who seeks to gain an advantage in a competition of organized sport by taking performance-enhancing substances (83). Performance-enhancing substances are those listed in Annex I of the International Convention against Doping in Sport of 19 October 2005. For the substances considered here, this means that amphetamine, methamphetamine, cocaine, MPH, modafinil and active substances with a similar chemical structure or similar biological effect(s) are covered.
Interim result
It should be noted that self-enhancement is only punishable under the German Anti-Doping Act.
Other offenses
German Narcotics Act (BtMG)
According to § 29 (1) of the German Narcotics Act (BtMG), anyone who illicitly cultivates, manufactures, traffics in, imports, sells, dispenses or otherwise puts into circulation, acquires or otherwise obtains narcotic drugs (No. 1), possesses (No. 3), prescribes, administers or hands them over for immediate consumption (Nos. 6, 6a), provides false or incomplete information in order to obtain a prescription for a narcotic drug for themself or for another person (No. 9) or provides or gives another person an opportunity for the unauthorized acquisition or unauthorized supply of narcotic drugs, communicates such opportunity publicly or selfishly or induces another person to the unauthorized consumption of narcotic drugs (No. 10) is punishable.
Unauthorized prescription by a physician
§ 29 (1) sentence 1, no. 6 of the German Narcotics Act (BtMG) punishes the prescription, administration or handover of narcotics for immediate use, when done so contrary to § 13 (1) (84). § 13 (1) of the German Narcotics Act stipulates that the narcotics listed in Schedule III may only be prescribed if their use on or in the human body is justified. The German Narcotics Act conclusively defines when an application is unjustified. This is the case if the purpose intended by the use can also be achieved in another way. Case law has concretised this to the effect that a prescription is only permitted in cases where the use on or in the human body is clearly medically justified (85). Consequently, the physician is obliged to first make a diagnosis that leads to a corresponding indication (84). An application is therefore only justified “if the remedy is suitable as a remedy for the patient's suffering according to the general or by far the predominantly recognized rules of medical science” (85). The prescription may only be made if the physician is convinced after a thorough examination that the application is permissible and advisable according to the recognized rules of medical science (86). This is the case if it promises a healing success (85).
Unauthorized trafficking under the German Medicines Act (AMG)
According to § 95 (1) no. 4 alt. 1 of the German Medicines Act (Arzneimittelgesetz—AMG), it is a punishable offense to trade in prescription drugs without authorization. Methylphenidate, cocaine, amphetamine or similar pharmacological neuroenhancers already fall under the German Narcotics Act, whereas the active ingredient modafinil is “only” available on prescription and is not a classic narcotic. Nevertheless, illicit trafficking is punishable. In addition to the professional or commercial supply of prescription medicines to consumers (via the distribution channel of pharmacies), the prohibition of unlawful trafficking covers any supply by others against payment (87). The term “trafficking” is primarily used in the German Narcotics Act which the German Medicines Act is based on (88). Thus, every acquisition process is covered (89, 90).
Clinical experience shows that physicians and other health care professionals sometimes use psychostimulants (12). This is problematic because addicted physicians hardly fulfill the requirements for maintaining their license to practice (91).
Discussion
The “everyday” substances and OTC drugs taken for PN are mostly “harmless” and do not significantly improve brain function (59). From the legislator's point of view, prescription substances that are not subject to criminal law do not have the required degree of danger. Therefore, these substances have to be excluded from further consideration.
Further substances, however, have to be considered even if their clinical effects by influencing mood states and indirectly cognitive functions, are low. The effects of narcotics go beyond this; they increase attention and promote sustained concentration. However, even this is not sufficient to derive punishability from it. It remains that the consumption of substances—outside the scope of the German Anti-Doping Act (AntiDopG)—is exempt from punishment.
This result may displease the interested reader. On the one hand, almost all acts surrounding and leading up to consumption are punishable, merely the consumption itself is not. This appears to be a legal subtlety. However, this is not the case: acts outside of consumption regularly endanger third parties. For example, the trafficking of narcotics endangers the health of third parties. As the state is also tasked with the protection of “public health,” according to Article 2 (2) of the German Basic Law (GG), the application of criminal law is legitimate. If the consumer only harms himself, there is no legitimizing reference to third parties.
This means to the German population that the “only” offense is the ownership of narcotics without having a respective prescription. Of course, using PN drugs may lead to the fact of changes regarding mental states and/or mood. Furthermore, it may lead to aspects of self-harm; however, this is not prohibited by any German law and therefore cannot be punished. Beyond that, it has to be stated that using PN drugs without affecting others, the use seem to be legally “unproblematic.”
This use becomes problematic, when others could be or even are threatened. Therefore, you have to ask what would the criminal law assessment look like if performance-enhancing substances were taken in situations with a third party reference? If a physician took substances after a tiring shift in order to be able to perform an operation with the required attention? Superficially, he is harming his own health. However, performance-enhancing narcotics such as prescription and illegal stimulants are known to cause deficits in judgment, perceptual changes, mental health changes etc. that has to be considered as side effects in the medical understanding given in the respective information (Arzneimittelfachinformation) (92). If a physician operates in this state, a danger to patients can no longer be objectively ruled out. However, if the physician overestimates his abilities, it can usually be assumed that he firmly trusts that he can treat the patient better because of the consumption. With regard to the Hippocratic Oath, it is to be assumed that he acts in the patient's best interest and does not intend to harm the patient's health beyond the necessary invasive measures. According to the current legal situation, he should remain unpunished. However, it should be noted that the circumstances of the “individual case” are always decisive (93). What is meant by individual case? The individual case depends i.a., on the drug (drug characteristics), the amount (dose) and the state of the use [tired, sleep-deprived, etc.; e.g., (44, 47, 58)]. These are the most important aspects determining the “individual case” leading to a more or less significant cognitive and mood change. The consequence as a more or less significant change of behavior and a more or less significant risk of damage for a patient or another person interacting with someone influenced by the use of a PN drug.
Beyond that, it could be argued about the possibility of impairment of the user. However, PN drugs are not known to decrease the users' level of functioning. Therefore, this aspect does not have to be considered.
Except from the above mentioned physician, easier and less complicated cases are imaginable e.g., nurses, taxi, bus or truck drivers, pilots or other people (in a professional or non-professional context) demonstrating the possibility to harm others influenced by the use of PN drugs.
From a legal perspective, it must be stated that the consumption of any PN substances is exempt from punishment. Based on the known clinical effects, there seem to be no need for further regulation based on a lack of cases of accidents, deaths, malpractice or even violence in the context of PN. If there are no such cases or the context could not be drawn cannot be evaluated yet.
It is conceivable, however, that research into more effective substances will necessitate a different assessment under criminal law in the future. The jurisprudence is obliged to take medical progress into consideration.
Apart from the clinical effects of PN drug use, there are already weighty reasons in favor of criminal law regulation. Because of the more or less rare side effects (e.g., mania, psychosis, overconfidence, euphoria, etc.) physicians and others (nurses, truck drivers, etc.) can endanger the physical integrity of their patients or others. It is hardly predictable when side effects such as mania, psychosis, overconfidence, euphoria, etc. will set in. The users decisions (speed of driving, using specific surgical instruments, landing a plane, etc.) can be negatively influenced by this. Through PN, users may set others on risk; e.g., the physician exposes his patients to the risk of wrong decisions and treatment errors. He thereby impairs the trust in the physician-patient relationship. The protection of life and limb and the reliability of health care services could legitimize regulation under criminal law.
Bringing together medical and legal aspects of the PN phenomenon systematically for the first time, the manuscript allows a legal approach based on medical and especially pharmacological aspects. However, there are some aspects that are limiting the meaningfulness of this article that have to be considered.
Main problem of this article is the fact that there are more or less different legal systems all over the world. This means that the German legal perspective regarding PN is not transferrable to other countries' legal systems. However, it has to be stated, that there are some fundamental legal principles being equal in many countries' legal systems. Therefore, this review allows a slight approach to an international consideration how to deal with PN drug use. Comparing the legal situation of PN drug use internationally or at least multinationally should be investigated in further studies.
Beyond this major weakness of the paper, the legal consideration is based on a systematic search of the literature in one search engine (pubmed). This search engine is the most well-known and used data base of the field of natural sciences including medicine and pharmacy. However, there are further but smaller and less important data bases. This may have led to the possibility that some studies deriving from the field of psychology are not included in this review. However, the substances that are included in this review are designated in the vast majority of the studies found. The used studies show an enormous unity in designating substances. Only very few studies suggested to add further substances such as beta blockers or benzodiazepines (6). However, the respective studies argued that benzodiazepines and beta blockers are used to get “calm” e.g., in case of stage fright of musicians or to counteract a high arousal during daytime (29, 94). These properties do not meet the definition of PN by Franke and Lieb (3, 8) the review is based on. Therefore, substances such as benzodiazepines and beta blockers are not included in this review.
Beyond that, studies measuring the clinical effects of PN drugs are based on a plethora of assessment instruments. These psychological assessment instruments cannot be compared to each other. Therefore, the review is unable to compare the studies and putative effective sizes directly to each other. However, to gain insight being as objective as possible (primarily), studies have been chosen using a RCT design (randomized, double-blind, placebo-controlled trials) to characterize clinical effects of the PN substances. This RCT study design offers an objective analysis of (clinical) effects avowing any subjective bias. Therefore, the evaluation of clinical effects is based (primarily) on this type of studies.
Data availability statement
The raw data supporting the conclusions of this article will be made available by the authors, without undue reservation.
Author contributions
All authors listed have made a substantial, direct, and intellectual contribution to the work and approved it for publication.
Acknowledgments
We acknowledge support for the Article Processing Charge from the DFG (German Research Foundation, 491454339).
Conflict of interest
The authors declare that the research was conducted in the absence of any commercial or financial relationships that could be construed as a potential conflict of interest.
Publisher's note
All claims expressed in this article are solely those of the authors and do not necessarily represent those of their affiliated organizations, or those of the publisher, the editors and the reviewers. Any product that may be evaluated in this article, or claim that may be made by its manufacturer, is not guaranteed or endorsed by the publisher.
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Keywords: cognitive enhancement, criminal law, punishment, stimulants, legal situation, fine, neuroenhancement
Citation: Dominik P, Waßmer MP, Soyka M and Franke AG (2022) Stimulant abuse as a coping strategy—Forensic and criminal consequences of stimulant abuse for neuroenhancement. Front. Public Health 10:1028654. doi: 10.3389/fpubh.2022.1028654
Received: 26 August 2022; Accepted: 12 October 2022;
Published: 28 October 2022.
Edited by:
Yuka Kotozaki, Iwate Medical University, JapanReviewed by:
Andreas Ihle, Université de Genève, SwitzerlandJolanta B. Zawilska, Medical University of Lodz, Poland
Copyright © 2022 Dominik, Waßmer, Soyka and Franke. This is an open-access article distributed under the terms of the Creative Commons Attribution License (CC BY). The use, distribution or reproduction in other forums is permitted, provided the original author(s) and the copyright owner(s) are credited and that the original publication in this journal is cited, in accordance with accepted academic practice. No use, distribution or reproduction is permitted which does not comply with these terms.
*Correspondence: Martin P. Waßmer, martin.wassmer@uni-koeln.de