The focus of the ethics literature regarding pain management has shifted from issues related to the treatment of patients experiencing terminal pain to the concept of pain management as a human right1 for patients with nonmalignant pain. International, federal, and state initiatives; new guidelines and standards; and numerous studies that document the high costs of chronic pain have fueled this attention to untreated or undertreated pain in nonterminal patients. Thus, the new ethical pressure to provide pain medication to patients with nonmalignant pain may be experienced by physicians as putting them in legal jeopardy. This is complicated further by Hall and Boswell’s1 assertion that there is no clear legal or ethical basis for pain management as a right; others conclude that failure to treat pain is a breach of human rights.2 Hellman3 examines whether trusting patients even constitutes a legitimate and accepted medical practice, although she provides a compelling argument that doctors can be morally justified in trusting patients’ reports of pain.
Crucial to the physician’s ability to practice ethically in the current environment2 is for the physician to be able to trust the patient. The two areas of trust that are needed are in the patient’s self-report of pain level and in the patient’s reporting of judicious use of pain medication.
In this chapter, we describe some of these ethical dilemmas and examine the underlying problems with physician trust in the patient with chronic pain. We then propose how a reconceptualization of pain clinic treatment systems might serve to diminish some of the ethical dilemmas in relation to the emerging standard of the human right for pain management.
Legal and ethical considerations relate not only to the concept of pain management as a right but also to the interactions between the patient and the doctor. Although the literature and research dealing with rights versus ethics is both thoughtful and influential, there is a remarkable void of attention on the common ethical and relationship issues that arise on a daily basis with the care of patients with chronic nonmalignant pain. An exception to this is literature about the patient–provider relationship that has largely focused on provider issues and the trust that patients have in their doctors. Patient trust in a physician has been identified as the expectation that the physician will behave in a way that allows the patient to take the risk of sharing personal information, and it can be a predictor of adherence, satisfaction with care, and health improvement.4,5 Educational modules and standards are available for doctors to help promote trust, and several trust scales have been developed to assess the trust that patients have in their physicians.6
In contrast, consideration of the doctor’s trust in the patient tends not to receive much of our attention;7 however, the problems are real and common. Researchers have identified that physicians’ trust in a patient stems from factors external to the patient, such as media events, racial bias, the practices of colleagues, and their own experiences.8 This chapter focuses on the physician trust of the patient with chronic pain for the purpose of starting to identify the nature of underlying problems and to institute systems to minimize their frequency.
The following cases do not represent single individuals but composites of several. After reviewing a case history, we examine the ethical issues and later develop a methodology for building trust. We then apply this methodology to additional cases.
We have used a case-study format for discussion because it is common practice in both medical and ethics education and best affords the reader concrete examples of potential clinical and ethical dilemmas.
Ethical deliberation usually consists of the application of basic ethical theories that support and guide ethical decision making. Such philosophical theories, or models of deliberation, provide different approaches for analyzing basic ethical principles and how such principles are to be judged in relation to others. English9 states that “an ethical theory attempts to achieve a general applicability to considerations of moral behavior, with as few exceptions as possible. Important characteristics of a theory include universalizability, comprehensiveness, and consistency.” Because this is a chapter devoted to ethical issues in chronic pain management, readers should be aware of the relevant and predominant ethical theories that exist to guide them in ethical analysis. Of the three theories subsequently listed10 (there are many more), we have adopted a more casuist approach for this chapter.
Utilitarianism, identified most closely with Jeremy Bentham (1748–1832) and John Stuart Mill (1806–1873), is the theory whereby the rightness of an act is judged by its ability to bring about the greatest good or benefit. Therefore, utilitarians judge actions by their consequences. In medicine, a physician is to maximize the benefits to his or her patients while minimizing the burdens of treatment.
Deontology is the study of duties that persons have toward one another. The most prominent of the classic deontologic theories is that developed by Immanuel Kant (1724–1804). Considered duty-based as opposed to action-based utilitarians, deontologists judge actions by the intent behind them instead of their consequences (however, consequences can be taken into account in decision making).
Casuistry was an influential ethical theory in medieval and early modern philosophy. “Rather than concentrate on rules and general principles that may be applied to specific cases, casuists insist that moral judgment must emerge from particular cases, or better still, from experience with a number of cases that can be compared to one another in various ways.” Casuists regard ethics as a set of practices that arise from human moral experience.8
As mentioned earlier, there are many methodologies for analyzing clinical ethical dilemmas. Fins11 and Loewy12 have argued persuasively that a problem-solving approach—similar to developing a medical diagnosis and treatment plan—is more useful than the application of predetermined ethical principles. Their arguments apply primarily to the approach to each individual clinical-ethical problem. However, when examining a group of problems in an effort to search for common themes and possible solutions, it may still be useful to apply the template or framework of primary ethical principles. Most clinical ethical dilemmas involve a conflict between or among two or more of the following basic or primary ethical principles:
Respect for persons, which includes respect for the autonomy, or self-determination, of the patient and the need to protect patients with diminished autonomy
Beneficence, which includes the obligation to maximize possible benefits while minimizing the risks and the requirement to do no harm (nonmaleficence)
Justice, which includes the need to provide fair access to medical care and fair allocation of scarce resources11
Solutions to such dilemmas begin with a basic understanding of these concepts and the clinician’s ability to incorporate these principles into his or her everyday clinical practice.
A 41-year-old man is seen for a 3-month history of complex regional pain syndrome (CRPS, also known as reflex sympathetic dystrophy) of his left foot. He reports debilitating pain. Examination reveals classic features of CRPS, including severe allodynia. The patient’s past medical history is significant for heroin abuse. He has not abused any drugs for the past year. For the past 2 months, his primary care physician has prescribed acetaminophen with codeine (30 mg), one tablet three times per day. The patient reports that this does not touch his pain. The physician refuses to provide more or stronger opioids. The pain clinic consultant develops a treatment plan. Many of the treatments yield slow and uncertain results. Meanwhile, in spite of concerns regarding potential drug abuse, the consultant establishes a pain medication agreement with the patient for the use of long-acting oral morphine: 15 mg two times per day. Five days later, the patient calls the clinic and reports that the new opioid prescription is better but still inadequate. The consultant believes that she has increased the opioid dose by a large amount and is not willing to increase it further at this time. She tells this to the patient.
Discussions with the consultant reveal that she is uncomfortable with a number of aspects of this case. She recognizes that her opinion regarding an appropriate drug dose is influenced by the patient’s prior history of drug abuse. This history suggests that the patient may be at higher risk of developing an addiction. Furthermore, she finds herself uncertain about whether the patient is accurately reporting his pain levels even though his pain symptoms match those of classic CRPS. Finally, upon introspection, the consultant realizes that if this patient were suffering with pain from a malignancy, she would be more aggressive with her prescribing of analgesics, yet she knows that the pain of CRPS can be more intense than the pain associated with malignancy.
Within the framework of the basic bioethical principles described earlier, we can see that the scenario in Case 1 describes an infringement of the obligation to respect the patient, or more specifically to respect the autonomy of the patient. The consultant is assuming a paternalistic attitude—which typically is considered to be contrary to the principle of autonomy—and determines for the patient what is the appropriate amount of medication. However, according to English,9 there are circumstances in which the initial status of respect for autonomy (of the patient) is overruled by, among other factors, the concept of professional autonomy (a professional is not obliged to act against personal or professional ethical convictions). Given the complicating factor of prior drug use in this case, it is possible that the consultant, concerned that this patient is at higher risk for developing another addiction that would be harmful, could use the concept of professional autonomy to justify at least a prudent delay in prescribing more or increasing the dose of opioids. Such concerns and reasoning should also be shared with the patient so that he or she may understand that the physician’s concern is for his or her best interest, especially with regard to the patient’s risk of developing another addiction. However, had this patient no prior history of drug abuse, the principle of professional autonomy would not be as applicable. The physician probably believes that her drug limits are required by the principle of nonmaleficence because she believes that higher doses of opioid medication significantly increase the risk of addiction. In her efforts to do no harm, however, the physician may not be following the other half of the principle of beneficence, that is, the requirement to maximize the potential benefits while minimizing the risks. Finally, this case may also demonstrate a violation of the principle of justice. By virtue of a previous medical problem (heroin addiction), the patient is now not receiving medication for the relief of pain equal to what would be prescribed for a patient without such a history. If this is the result of prejudice, as opposed to a considered assessment of the involved risks to the patient, then this would represent unfair limits on the access to medical resources (i.e., medications). Similarly, if the patient would receive more analgesic medication if the underlying cause of his pain was cancer and if the reason for more medication was simply a reflection of societal attitudes regarding cancer pain versus nonmalignant pain, then this too may reflect an ethically unjustifiable limit on the provision of medical care.