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What Should the Future Look Like for Brain-Based Pain Imaging in the Law? Three Eminent Scholars Weigh In

By Amanda C. Pustilnik, Professor of Law, University of Maryland Carey School of Law

What should the future look like for brain-based pain measurement in the law?  This is the question tackled by our concluding three contributors:  Diane Hoffmann, Henry (“Hank”) T. Greely, and Frank Pasquale. Professors Hoffmann and Greely are among the founders of the fields of health law and law & biosciences. Both discuss parallels to the development of DNA evidence in court and the need for similar standards, practices, and ethical frameworks in the brain imaging area.  Professor Pasquale is an innovative younger scholar who brings great theoretical depth, as well as technological savvy, to these fields.  Their perspectives on the use of brain imaging in legal settings, particularly for pain measurement, illuminate different facets of this issue.

This post describes their provocative contributions – which stake out different visions but also reinforce each other.  The post also highlights the forthcoming conference-based book with Oxford University Press and introduces future directions for the use of the brain imaging of pain – in areas as diverse as the law of torture, the death penalty, drug policy, criminal law, and animal rights and suffering.  Please read on! 

Diane Hoffmann’s piece opens the discussion. She argues that the legal uses of brain-based pain imaging are now at a stage much like that of medical DNA testing 25 years ago. DNA testing presents many of the same issues as brain imaging: How do we know what this gene does – or what this brain scan means – in this particular person? How much does this gene – or brain activation pattern, or brain structural variation – affect the person’s health and behavior? What environmental factors and behavioral factors might moderate or exacerbate the negative effects of this biological predisposition? These and many other critical issues in the translation of DNA test results into legal evidence were addressed by national-level working groups considering the ethical, legal, and social implications (“ELSI”) of DNA testing. Similarly, Professor Hoffmann believes that we need a national ELSI research program on the brain-imaging of pain. She also echoes concerns raised by neuroscientist Karen Davis that, before we plunge into developing brain-based measures of pain for legal use, we ought to be clear on why such a project would, or would not, be beneficial – and to which stakeholders.

Frank Pasquale’s post asks a fundamental question:  Why we are focusing on measurement at all?  Even highly accurate measurement that reveals some facts will obscure others – particularly if we only have that one measurement.  Imagine knowing only(but very accurately) how cold it is on any given day on top of Mount Everest:  That tells you (almost) nothing about what a mountain is, or high it is, or the oxygen concentration, much less what it feels like to climb it.  You have another source of information:  The experience of Sherpas.  They can give you critical information about height, topography, necessary gear, risk of oxygen deprivation and so on.  That’s just their experience; it’s not an “objective measurement.”  But any climber who relies on the measurement while discounting the experience and subjective knowledge of the people who know the mountain … will die.  Objective =/= “good,” subjective and experiential =/= “bad.”  Professor Pasquale emphasizes that we are most likely to turn to measurement specifically when distrust of a category of people runs high.  A quest to quantify pain may be like efforts to surveil and monitor other suspect classes, like welfare recipients.  Such efforts – drug testing, home visits, and the like – are costly without being beneficial, and principally reinscribe the view that the monitored group is untrustworthy and “less than.”  Professor Pasquale acknowledges that the brain imaging of pain may have powerful applications, particularly at the group level through showing that chronic pain diseases are neurologically real.  But he expresses the hope that brain imaging will not be used as yet another surveillance and monitoring tool that dehumanizes those subject to it, at great cost, for questionable benefit.

Henry (“Hank”) T. Greely closes the discussion on pain measurement – and our week of pain, brain & law blogging – by marshaling his expertise in DNA testing and applying it to the case of brain imaging of pain. Professor Greely help pioneer the nationwide standardization of DNA testing practices for legal purposes, to ensure that non-standardized, unreliable, or junk science would not contaminate the legal arena. Professor Greely pragmatically tells us that brain-based pain measurement is already here: Several commercial companies have started to offer this service. Parties have already introduced this evidence into court, as highlighted in Nature earlier this year. Because it is here, and because there is a real problem for individuals and for the legal system with proving the presence and degree of pain, Professor Greely argues that standards and practices for the brain imaging of pain must be established. ELSI concerns of the kind identified by Professor Hoffmann must be part of this endeavor, as must a consideration of dignitary harms and decision-making blind-spots, as raised by Professor Pasquale. But not acting, he asserts, is not an option. Moreover: Objective proof of pain may do real good, literally making visible the impact of sometimes-disabling conditions that otherwise can be waived away as imaginary.

On this note, we end the week of pain, brain, and the law blogging. But not the project! Please look for a volume that will be forthcoming with Oxford University Press, with chapters from our conference participants and guest contributors. In addition to the important issue of pain measurement (“painometers”), contributors will address topics ranging from:

  • The “Pain Brain” in the Law: How brain imaging can change the law’s paradigm of pain at the doctrinal level and as background or framework expert evidence, helping to explain at a general level how chronic pain arises and why it often leads to or co-occurs with cognitive impairment, affective impairment, and risk of future perceptual and cognitive impairments
  • All in Your Head? “Psychogenic Pain” and Disability Law: Is the paradigm of chronic pain, particularly chronic pain without lesion, as primarily psychogenic (hysterical) scientifically valid and legally useful? Most brain science points toward a real role for emotion in chronic pain conditions, but not the one Dr. Freud imagined. How can the law progress beyond the hysteria model?
  • Beyond Law’s Dualism: Considering whether the neuroscience of emotional pain and suffering should prompt a normative reevaluation of the law’s distinctions between bodily harm and emotional injury – and, if so, whether new categories of crimes defined by emotional harm (e.g., chronic bullying or psychological child abuse) may come to be recognized
  • Equality in Pain Treatment: Addressing the persistent disparities in pain relief – and belief – in pain treatment by race and gender
  • The War on Drugs Meets the War on Pain: Opiates are the new heroin. But does drug enforcement policy put doctors and patients at risk?
  • Suffering’s Wounds: The long-term impact of torture and solitary confinement on the brain
  • Cruel and Constitutional: Pain discourse in 8th Amendment challenges to the death penalty
  • Does All Suffering Count?: Considering the pain of animals, and probing whether and why animal pain should matter to humans

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).