A very worthwhile read from Amanda Pustilnik in the Harvard Review of Psychiatry (open access)
Legal Evidence of Subjective States: A Brain-Based Model of Chronic Pain Increases Accuracy and Fairness in Law
“Chronic pain is one of the most common reasons that people seek legal redress, just as pain is the single most common reason that patients seek medical treatment. Yet, the few rules and doctrines that guide legal decision makers in their evaluations of these cases incorporate erroneous, discarded medical and psychiatric constructs…
Respected authorities instruct legal decision makers and medical experts to beware of people who claim to have chronic pain. In a recent journal article, a university-based neurologist who directs a hospital pain center asserts that chronic pain has “no underlying organic explanation” and that it arises from “compensation neurosis,” “secondary gain,” or “self-mutilation.” An American Medical Association (AMA) practice guide on evaluating legal claimants with chronic pain, from 2013, instructs examiners to presume the pain condition is caused by personality disorder…
The contemporary narratives, above, may surprise readers involved in research or affiliated with secondary or tertiary care centers. The shared notion at the heart of those ideas—that pain is manufactured and even desired by patients—is at odds with the positions of authoritative organizations including the Institute of Medicine, National Institutes of Health, Centers for Disease Control, and International Association for the Study of Pain, among others.” (emphasis added)
In the paper, Pustilnik provides a very up to date introduction to pain biology (one that would put a few pain ‘experts’ to shame) and then goes on to outline the case for the need of an urgent update to how the law conceptualises pain;
In its doctrines, regulations, and judicial practices, Anglo-American law incorporates concepts of pain that are appropriate to acute but not chronic pain, and also heavily relies on psychogenic theories of chronic pain. In so doing, various branches of law offer legal decision makers misleading, even perverse guidance on how to evaluate chronic pain–related claims, setting out standards that meritorious claimants often will not satisfy but that non-meritorious claimants can.
The central issue in U.S. and UK law is whether pain is “organic” or not, as this may change the outcome of a case. In tort, “psychogenic” pain often is either not compensable or less compensable than “real” pain. By contrast, in U.S. disability law, patients with chronic pain may not be awarded compensation unless they can show their pain is psychogenic
Built into U.S. disability law, however, is the concept of “expected” pain—that is, pain that is “reasonabl[e]” for particular injuries. Administrative law judges who determine disability benefits cases are tasked with making this determination. This standard has some utility. The more extraordinary the claim, the greater the evidentiary hurdle ought to be. Yet, it is problematic because no source sets forth how many units of pain every known disease or disorder “reasonably” should cause
Law not only specifies what pain must look like but how it must feel. According to federal appellate courts in several U.S. federal circuits, chronic pain must be “constant, unremitting, and wholly unresponsive to therapeutic treatment”; under that precedent, variability—having good days and bad days—can indicate fraud. Yet, pain neuroscience researchers have demonstrated that chronic pain is characteristically variable. Contemporary research should guide courts to the opposite legal presumption: courts should expect evidence of variable pain in chronic pain, whereas claims of invariant, constantly excruciating pain may indicate fraud. (emphasis added)
Just one more thing
Despite the title of Pustilnik’s paper, she does not advance a simplistic fMRI-correlate-of-chronic-pain argument. On the contrary, she suggests a significant update to the Law’s understanding of pain – a deeper, more nuanced understanding that takes into account the neuroimmune complexity of persistent pain – at the same time as promoting caution in adopting the use of fMRI evidence
To be clear: law cannot import either a pain biomarker from the sciences or a list of universal criteria to tell true claims from false. What law currently can benefit from, even as science in this area advances and changes rapidly, is a basic update of its construction of pain as either directly correlated to injury or pathology and thus real, or not directly correlated and thus mentally manufactured or faked. Moreover, legal actors could recognize that features of chronic pain disorders they find to be suspicious and counterintuitive are ones that constitute, instead, expectable features of these disorders. Indeed, their absence might be cause for suspicion (as with pain variability).
To chose just one example: central nervous system remodeling in response to the neuro-immune cascade initiated by neuropathic injuries can account, in a unified way, for seemingly inexplicable features common in neuropathic injuries, including delayed pain initiation, extraterritorial pain, and cognitive and affective impairments. Alternative models—such as those claiming that chronic pain represents intentional self-harm, attention seeking by the “unloved,” or rebellion against patriarchy—cannot.
Decision makers should be cautioned that framework evidence does not constitute proof or disproof as to the individual party. Limitations on the use of demonstrative evidence may also be appropriate, as imaging-based evidence—and fMRI, in particular—may have heightened persuasive power. Despite their possible general utility at trial, brain images should not be admissible to prove or disprove pain in an individual party. Scientists who have developed the foundational research in pain imaging are the first to say that brain images are not some kind of ultimate selfie revealing a person’s mental state. (emphasis added)
In all, Amanda Pustilnik has provided one of the more cogent summaries of the vital need for an up to date understanding of pain (not just for lawyers and judges, but clinicians and therapists too), I’ve read for some time.
In 2012 this wa published:
“Trust me, I’m a patient: pain education for professionals from a lay perspective”
“A young woman with arthritis talking about the rising tide of hostility to disability claimants says: ‘People think I’m faking. I’ve lost friends over it. Pain is invisible and hard for people to understand.’ How many of us could say that we have never thought that someone reporting pain is faking or, at the very least, making too much fuss? This is the society in which we live: intolerant of the pain of others. From childhood onwards we are told to stop whingeing and are often not believed when we report pain. Adults can be intolerant of their partner’s pain and in the workplace colleagues seldom treat kindly weakness of any sort.
These preconceptions and attitudes to other people’s pain are what professionals may have grown up with and may subconsciously bring to the clinical setting. Pain education for professionals should focus not only on the methods of treatment available but equally on the impact of pain and the need to listen to and believe the patient’s story. Pain is what the patient says it is and if he or she has come to you for help, there will be very few instances in which pain relief must be withheld whilst a diagnosis is sought. And yet, often pain management is not addressed until all the avenues of diagnostic tests, scans and specialist opinions have been explored. Students need good communication skills and empathy, and they should be encouraged to think about their own attitudes to pain and how these might affect their professional practice. They should learn that there are very few conditions for which pain relief must be withheld until a diagnosis is made. For the majority of people adequate pain relief can be achieved before a diagnosis is made.”
So, what does a diagnosis of chronic pain really mean?