The ethics literature regarding pain management has typically
focused on end-of-life issues involved with the treatment of patients
experiencing terminal pain. But many if not most of the problems
that arise with pain treatment involve problems with the treatment
of chronic nonmalignant pain. A large portion of these problems
can be traced to underlying problems with the ability of the physician
to trust the patient. In this chapter I describe some of these ethical
dilemmas, examine the underlying problems with trust, then propose
how reconceptualizing some of the pain clinic treatment systems
might serve to diminish some of the ethical problems.
Consideration of the ethical issues involved in pain management
typically conjures up images of the terminally ill patient. The
literature and research dealing with care at the end of life is
extensive; however, there is a remarkable void of literature and
research considering the common ethical issues that arise on a daily
basis with the care of patients with chronic nonmalignant pain. These
issues tend not to receive much of our attention; however, the problems
are real and frequent. It is my hope that by focusing on these issues,
we can start to clarify the nature of the underlying problems, and
perhaps start to institute systems to minimize their frequency.
The following cases do not represent single individuals, but
condensations of several cases from discussions of the monthly Ethics
Round Table meetings at the University of California Davis Medical
Center Pain Clinic. 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 employed 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
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. English1 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.” As this is a chapter
devoted to ethical issues in chronic pain management, the reader
should be aware of the relevant and predominant ethical theories
that exist to guide them in ethical analysis. Of the three theories
subsequently listed (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 their 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.1
As mentioned earlier, there are many methodologies for analyzing
clinical ethical dilemmas. Fins3 and Loewy4 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 two or more of the following basic or primary ethical principles:
- 1. Respect for persons, which includes respect for the
autonomy, or self-determination, of the patient and the need to
protect those patients with diminished autonomy
- 2. Beneficence, which includes the obligation to maximize
possible benefits while minimizing the risks, and the requirement
to do no harm (nonmaleficence)
- 3. Justice, which includes the need to provide fair access
to medical care and fair allocation of scarce resources.3
Solutions to such dilemmas begin with a basic understanding of
these concepts and the clinician’s ability to incorporate
these principles into their everyday clinical practice.
A 41-year-old man is seen for a 3-month history of complex regional
pain syndrome (CRPS, also known as RSD, 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 last 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
narcotics. 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 contract 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
narcotic prescription is better, but still inadequate. The consultant
feels that she has increased the narcotic 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, but this history
does not have a direct impact on how much pain the patient is experiencing.
She finds herself uncertain about whether the patient is accurately
reporting his pain levels. Furthermore, the physician notes that
the patient appears to be adopting a defensive attitude, as if he
needs to justify his pain and his need for treatment. 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,1 there are circumstances
in which the initial status of respect for autonomy (of the patient)
is overruled by, among other reasons, 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 employ the concept of professional
autonomy to justify at least a prudent delay in prescribing more
or increasing the dose of narcotics. Such concerns and reasoning
should also be shared with the patient so that they may understand
the physician’s concern 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 likely feels that her drug limits are required by
the principle of nonmaleficence, since she feels that higher doses
of narcotic medication significantly increases 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.
Without exploring the causes that underlie these dilemmas, resolution
will be difficult. The physician is stuck trying to balance the
potential benefits and risks of higher doses of narcotics. She knows
that the history of prior addiction and the diagnosis of chronic
nonmalignant pain do appropriately affect the treatment decisions,
but she has a difficult time being sure that societal or personal
prejudices are not also affecting her decisions. The consultant
wishes that she could rely on the patient to make these judgments
for himself, but she realizes that she does not trust that the patient
is capable of this.
Trust is, in fact, the critical element that underlies all of
these problems. It is commonly recognized that we ask our patients
to trust us—their physicians. Somerville5 takes
the medical profession to task for expecting the blind trust of
our patients rather than earning their trust. However, as noted
by Sass,6 there is another side to the equation: “. .
medicine necessarily will have to shift attention from physician
ethics toward patient ethics and a partnership in health care. From
the perspective of trust-based communication and trust-based cooperation,
it is only logical to strengthen the other side of the partnership
and make difficult cases of clinical decision making an issue for
trust-based decision making in partnership.” Sass is not
suggesting that we increase our blind trust in our patients, but
rather that we enable our patients to earn our trust, and that such
earned trust “safeguards all expert-lay interactions.”6
On reexamination of the ethical problems in Case 1, we see that
each of these problems is triggered by a problem with trust, or
more specifically with a problem of the patient not having earned
the trust of the physician. In all cases involving the treatment
of chronic nonmalignant pain, the clinician must rely on the subjective
reports of the patient. The physician has no means of entering or
examining the reality of the patient. Scarry7 notes
that “to be in pain is to have certainty, while hearing
about pain is to have doubt.” Therefore, there is an automatic
or basic lack of trust: Is the patient accurately reporting his
or her experience of pain? In this particular case, the lack of
trust is exacerbated by the patient’s history of prior
drug abuse. Because of this lack of trust, the consultant feels
that she cannot rely on the patient’s autonomy and his
ability to accurately determine his own need for medication; she
therefore acts in a paternalistic fashion and determines her own
limits for the medications. Similarly, because she feels that she
cannot rely on the patient’s reports of his pain, she has
no gauge for judging when she has provided maximal benefit. Without
the ability to judge the degree of benefit, it is natural to rely
more heavily on the obligation to minimize risk and harm. Finally,
lack of trust may often underlie the tendency to treat nonmalignant
pain less aggressively than cancer-related pain. Vrancken8 gives
a telling description of the attitude of many pain physicians regarding
cancer pain patients. “They really have something, it is
also recognized by everybody that they really have something. Their
problems are also very real which makes it more easy for doctors
as well as patients to face psychosocial factors too.” Vrancken
is telling us that cancer pain patients are trusted more than patients
with nonmalignant pain. There is nothing inherent about nonmalignant
pain that makes its sufferers less trustworthy; therefore, problems
with trusting patients with nonmalignant pain may lead to encroachments
on the ethical principle of justice.
Pappagallo and Heinberg7 raise another point
in regard to chronic pain patients with a past history of addiction,
which is that they may not want opioids to manage their pain for
the fear of relapse. Considering both potential responses from such
patients, Pappagallo and Heinberg give further treatment suggestions
for reducing the risk of relapse in dealing with chronic pain patients
with a past history of addiction. They recommend:
- 1. The distinction between physical dependence, which
is to be expected, and addiction, which should be avoided, should
be clarified for the patient.
- 2. The patient should be encouraged to join or increase involvement
in a recovery program or in individual psychological care in order
to garner support and develop and bolster relapse prevention strategies.
- 3. A behavioral contract should be made, to provide the patient
with a clear definition of problematic use, misuse, and abuse behaviors.
- 4. Close supervision should be provided by the physician,
including frequent follow-up appointments, the use of only one prescribing
physician and dispensing pharmacy, and toxicology screenings.
- 5. Long-acting opioids, or around-the-clock dosing, may be
helpful in reducing the reinforcing, and therefore addictive, properties
of these medications.
From such suggestions, one can develop an ethical and clinically
sound standard of practice for such patients, and help move the
burden of decision making solely from the physician to the patient-physician
Two additional cases are presented to illustrate how the method
of analyzing trust may underlie potential infringements of basic
bioethical principles as the lack of trust creates an unethical
barrier to appropriate, unbiased treatment.
A 24-year-old woman is referred to the chronic pain clinic. The
patient reports constant, severe, mid-pelvic pain. She is unable
to concentrate on her graduate school work. She has seen numerous
specialists and has had extensive evaluations including laparoscopy,
all without result. After the laparoscopy, a new, burning pain developed
in her left labia and inguinal area. The patient’s gynecologist
reported generalized vulvar and pelvic tenderness, with more exquisite
pain responses with light touch of the left labia. The pain consultants
felt that this newer pain is suggestive of an ilioinguinal neuralgia.
There is no apparent cause for the original pelvic pain. Even narcotics
have not helped. During the clinic evaluation, the patient reveals
a childhood history of sexual abuse. Her affect is depressed and
angry. She is very frustrated by all the previous failed diagnostic
and therapeutic efforts, and their apparent complications. The patient
asks the pain clinic physicians to please do nerve blocks. The physicians
are concerned about the patient’s psychological health.
They explain the potential for interaction between physical and
emotional distress. They tell the patient that they will consider
nerve block techniques for the left inguinal and labial pain, but
she should first undergo psychological evaluation and treatment.
The patient states that she is unwilling to do this. Efforts to
address her concerns about the treatment plan fail. The patient
continues to insist that nerve blocks be performed. The clinic physicians
explain that they provide a comprehensive treatment plan, and that
they cannot proceed with only one element (the blocks) without the
other elements (the psychotherapy). The patient is upset and leaves
A 33-year-old man is being seen in the pain clinic for a 1-year
history of incapacitating low back pain. The primary care doctor,
the orthopedic surgeon, and the pain consultant are all unable to establish
a cause for the patient’s pain. Magnetic resonance imaging
of the lumbar region reveals mild disk bulges, which would not be
expected to cause the degree of discomfort that the patient reports.
A psychological evaluation reveals mild depression and somatic preoccupation,
findings common to most patients with chronic pain. Nerve conduction
studies are normal. The patient reports that the pain interferes
with his ability to concentrate, his relationships with colleagues, and
his ability to maintain prolonged sitting or standing positions.
Because of this he has been unable to return to work. The workers’ compensation
insurance company now insists on a report on whether the pain clinic
agrees with the patient’s claim that he is totally disabled.
In Case 2, the primary concern is regarding autonomy. The physicians
were concerned that acceding to the patient’s requests
for nerve blocks, without prior psychotherapy, carried an unacceptably
high risk of harm. Respect for autonomy requires that patients’ decisions
regarding care be made without coercion; however, the consultants
verged on coercion by telling the patient that they would only consider
providing the treatment she desired (nerve blocks) if she accepted
a treatment that she did not want (psychotherapy). As noted by Whedon
and Ferrell,10 pain patients may be exceptionally
susceptible to subtle coercion, since they are so vulnerable to any
offered possibility of relief. This situation is based on a lack
of trust. The physicians did not trust the patient’s judgment
and insight. They felt that she did not recognize her own psychopathology
and how this psychopathology was interacting with her experience
of both pain and medical treatment.
In Case 3, the clinician faces a dilemma. The patient may be
malingering; however, this cannot be determined simply on the basis
that there is a lack of objective data. A report of disability may reinforce
unconscious pain behaviors and diminish healthy, productive behaviors.
Therefore, such a report may not be in the patient’s best
interests, yet a failure to report disability may cause the loss
of the patient’s only potential income. The bases and rationale
for determining disability are complex and beyond the scope of this
paper; however, here too, the core of the problem is a lack of trust.
The clinicians recognize that the possibility of monetary gain may
be consciously or unconsciously influencing the patient. Since they
cannot enter the patient’s reality, they look for objective
evidence that might explain the patient’s pain. When they
cannot find such evidence, the concerns regarding the trustworthiness
of the patient are heightened.
Problems with trust underlie many of the ethical problems that
arise in the treatment of chronic nonmalignant pain. Trust is the
overriding principle and virtue that establishes and safeguards
all expert-lay interactions, particularly in the clinic.6 With
this understanding, we can reexamine our interactions with our patients.
We can enable more of our patients to earn our trust, and thereby
prevent ourselves from having to blindly and perhaps foolishly trust
some of our patients.
Techniques with potential for trust building are already widely
utilized; however, the full potential of these techniques are not
realized because they are not explicitly thought of in terms of
trust building, but rather in terms of contracts or patient compliance.
Reframing the ideas of patient treatment agreements, monitoring
of compliance and progress, and patient education are three approaches
that may enable more patients to earn our trust and enable clinicians
to more clearly recognize those patients that have not earned our
Patient treatment plan agreements are commonly used tools for
educating our patients about the treatments that will be provided,
the expectations regarding their participation, and the operating rules
of the pain clinic. Our patient treatment plan establishes:
1. The anticipated duration of treatment
2. Which treatments are likely to be provided
3. Goals for increased function
a. for clinic attendance
b. for use of medications
c. for drug testing
d. for compliance with all treatment modalities
e. for having a primary physician to assume care when
the treatment is completed.
Such treatment plan agreements are valuable, and when properly
used, they may help to promote trust. The discussion might start
with an explanation that pain treatment programs rely heavily on the
ability of the clinicians to trust the patients. That it would be
nice to blindly trust all patients, but this is not possible in
a setting that involves the treatment of subjective complaints with
potentially dangerous drugs and procedures and decisions regarding
impairment and disability. Therefore, we give all of our patients
the opportunity to earn our trust, while at the same time working to
earn theirs. The discussion would continue with explanations showing
how the Treatment Plan Agreement gives the patient an opportunity
to demonstrate his or her compliance and motivation to pursue multiple
treatment modalities (e.g., physical therapy, psychotherapy, and
medication use). Effort and dependability are considered signs of
trustworthiness. Failure to earn our trust signals that we are unlikely
to be able to help the patient.
Pain logbooks or diaries may also help to establish that the
patient is a trustworthy reporter of his pain. Patients who report
maximal pain levels without variation are unlikely to be accurate
and trustworthy reporters.
Upon reanalysis of case 2, we can see the potential value of
explaining to the patient that all our patients need to establish
that they are trustworthy in terms of their judgment and insight
before we can rely on such insight to help us make treatment decisions.
Such a discussion might have failed; the patient might still have
left upset. Such a discussion, however, would have clarified the universal
need of the clinic for patients to earn trust and might have minimized
any coercive aspects in the interaction.
In case 3, it is critical to provide the patient the opportunity
to demonstrate her efforts to get better. It would be valuable to
discuss that it is impossible to clearly establish disability based
on subjective complaints. However, the patient can earn our trust
over a 4- to 6-month period by demonstrating her effort and compliance
with a carefully tailored but demanding physical therapy and psychotherapy
program (including homework assignments).
A potential pitfall must be noted. It is reasonable to expect
patients to be compliant and to demonstrate effort, but it is not
reasonable to demand that patients get better. Treatment failure
does not establish that the patient is not trustworthy; rather it
may imply misdiagnosis or the need for alternative treatments.
Patients are much more likely to accept our suggestions and treatment
plans if they trust the physician. Failure to comply with treatment
does not necessarily mean that the patient is not trustworthy, but
may indicate that the patient did not find the physician to be trustworthy.
Chronic pain patients may be particularly prone toward mistrusting
their caregivers since they have typically been through extensive,
failed therapeutic efforts. Business & Health reported on what
patients endure before referral to a comprehensive pain management
center: the percentage of patients with litigation, 20%;
on workers’ compensation, 50%; not working, 75%;
who are depressed, 55%; those taking medication, 90%;
and have had at least one surgery, 58%.11 Furthermore,
when treatment efforts fail the patient is then often been treated
in a dismissive manner.
Physicians can and must earn the trust of the patient by : (1)
being there (within boundaries), (2) attempting to understand the
problem, (3) being respectful, (4) pursuing the best interests of
the patient (ignoring self-interests), (5) avoiding harm, (6) providing
nonprejudicial care, and (7) maintaining knowledge and expertise.
Pursuing the best interests of the patient rather than professional
self-interests means that caregivers must carefully analyze their
own motives to ensure that they are not affected by potential “secondary
gains” such as financial reward, research benefits, the
acquisition of experience, or the avoidance of anxiety regarding
liability or legal regulations.
Problems with trust underlie many of the daily ethical dilemmas
that are seen in pain clinics. Reconceptualizing and refocusing
the processes of patient education and treatment plan agreements
may provide more patients the opportunity to earn our trust. In
addition to monitoring levels of pain and function, now the clinician
can also monitor the parameter of earned trust. We like to think
that patients are our partners in the treatment process, but in
fact this is not always true. Attention to the parameter of earned
trust may provide the clinician with a firmer basis for difficult