Some Optimism on Brains, Pain, & Law – Let’s See What We Can Achieve

By Martha Farah, Director, University of Pennsylvania Center for Neuroscience & Society

Neurolaw includes some fascinating issues that lack any practical legal significance – for example whether we should consider anyone responsible for anything they do, given that all behavior is physically caused by brain processes.  It also includes some legally important issues that lack intellectual juiciness – like regulatory issues surrounding neurotechnology.

Thank goodness there are also some issues that combine intellectual fascination with practical legal importance. The Petrie-Flom Center at Harvard Law School and the Center for Law, Brain & Behavior at Massachusetts General Hospital recently focused on just such an issue when they convened a meeting of neuroscientists and legal scholars on the brain imaging of pain.

Pain, I learned at this meeting, is at the heart of many legal proceedings. A major problem to be solved in these proceedings is the determination of whether someone is truly in pain. Chronic pain in particular may not have physically obvious causes. There may be clinical and circumstantial evidence of pain – like adhering to a medication regime, seeking surgeries or other interventional procedures, and avoiding pleasurable activities – but often the major evidence of pain is just what someone says that it is. However, the motivation exists to lie about pain – to sue for more money, to obtain disability benefits – and so an objective measure of pain, a “pain-o-meter,” would be helpful.

The “pain-o-meter” is a silly term for a serious idea: the idea of using neuroimaging to assess the likelihood that someone is in pain. In principle it seems pretty straightforward: validate and norm the imaging measures (functional and structural), compare the patient’s values on those measures to the norms, and see how pain-like their values are. Alas, in presentations by an eminent line-up of pain neuroscientists, we learned how far away we currently are from having such validation.

Yet there is a pressing need for better evidence on pain, which has driven some plaintiffs to seek brain-imaging evidence. Such evidence was admitted by at least one court recently, as featured in the journal Nature.

My own contribution to the program was to urge a middle path, recognizing that the science is certainly not yet ready to use, but also recognizing that a method need not be perfect to constitute a significant improvement over current practice. To take this middle path requires us to engage with the empirical and legal issues more deeply. Don’t just say you’re for quality science or for empowering pain sufferers. Instead ask the following questions:

First, how good is the science now? I think we too often simply note that a system has not been proven accurate, or generalizable, or whatever, which is only the starting point for an analysis. How far short of accurate is it? For what kinds of pain? We need to inform ourselves about the evidence on sensitivity and specificity, in different populations, among other issues, if we want to understand the potential of brain imaging in pain law. From there we can see more clearly what the remaining obstacles are and how surmountable they might be.

Second, how good would it need to be before we use it? What performance specs should we hold out for? This will depend on many things, both facts and values, including how well our current methods work, and how we evaluate the costs and benefits of the new method’s successes and failures.

So let’s move beyond platitudes about avoiding junk science or recognizing that no method is perfect, and see how far the current science will take us, and how much further we need it to go!

Earlier posts in this series:

This post is part of the series on pain, brain imaging, and the law sponsored by the Center for Law, Brain & Behavior at Massachusetts General Hospital, the Petrie-Flom Center, and Harvard University’s Mind/Brain/Behavior Initiative. Contributors participated in the conference Visible Solutions: Now Neuroimaging Helps Law Reenvision Pain. For inquiries, please contact the organizer Amanda C. Pustilnik (@apustilnik on Twitter).

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