Brain Waves Reveal Intensity of Pain: Neural Signal Offers Objective Measure of Subjective Experience.

On the Neuroethics & Law Blog several months ago, Adam Kolber posted the following:

A couple of days ago, the NYT ran an article on the use of real-time functional magnetic resonance imaging (fMRI) to treat pain and perhaps a host of other symptoms like addiction and depression. The technology works like a kind of high-tech biofeedback:

"Here’s how Omneuron uses fMRI to treat chronic pain: A patient slides into the coffin-like scanner and watches a computer-generated flame projected on the screen of virtual-reality goggles; the flame’s intensity reflects the neural activity of regions of the brain involved in the perception of pain. Using a variety of mental techniques - for instance, imagining that a painful area is being flooded with soothing chemicals - most people can, with a little concentration, make the flame wax or wane. As the flame wanes, the patient feels better. Superficially similar to an older technology, electroencephalogram biofeedback, which measures electrical feedback across multiple areas of the brain, fMRI feedback measures the blood flow in precise areas of the brain."

By giving users feedback about their pain, the technique attempts to create a visual representation of an individual's pain. That's pretty impressive! But imagine if we could make interpersonal judgments of pain. That could really change the way we identify malingerers and the way we calculate damages in court. As I've noted, I think that new neurotechnologies may someday move us in that direction.

In the article that Professor Kolber is referring to, he addresses a future which could bring neuroimaging into the court room as objective evidence of the degree of pain that an individual is suffering:

Pain is a fundamentally subjective experience. We have uniquely direct access to our own pain but can only make rough inferences about the pain of others. Nevertheless, such inferences are made all the time by doctors, insurers, judges, juries, and administrative agencies. Advances in brain imaging may someday improve our pain assessments by bolstering the claims of those genuinely experiencing pain while impugning the claims of those who are faking or exaggerating symptoms. These possibilities raise concerns about the privacy of our pain. I suggest that while the use of neuroimaging to detect pain implicates significant privacy concerns, our interests in keeping pain private are likely to be weaker than our interests in keeping private certain other subjective experiences that permit more intrusive inferences about our thoughts and character.

Kolber, Adam J., "Pain Detection and the Privacy of Subjective Experience" American Journal of Law & Medicine (Brain Imaging & The Law Symposium), Vol. 33, p. 433, 2007. Available at SSRN: http://ssrn.com/abstract=976831

The future that Professor Kolber described may have come one step closer as the result of a study that was published this week in Nature:

Brain Waves Reveal Intensity of Pain: Neural Signal Offers Objective Measure of Subjective Experience.

Recordings from electrodes in the human brain may offer the first objective way to measure the intensity of pain. Researchers say that they have found a neural signal that correlates with the amount of pain that an individual feels. The signal could be used to refine pain-relief techniques that involve stimulating the brain with electricity, they say.
Single cells have previously been identified in the human brain that are active in pain, but their response is binary, signaling either pain or no pain. Now, Morten Kringelbach of the psychiatry department at the University of Oxford, UK, and his colleagues have identified low-frequency brain waves that emanate from two regions buried deep within the brain when a patient is in pain. The more pain that is experienced, the longer the waves last.

"It is an objective measure that correlates with a subjective measure."

Published online 14 November 2007 Nature 450, 329 (2007) doi:10.1038/450329b

Certainly, this technology could be a blessing for the millions of us who suffer from chronic back pain. And it could remove the hurdle that claimants face who suffer debilitating injuries but have no objective measures to support their subjective claims of pain. In the dispute resolution context, Professor Kolber concludes that neuroimaging for pain detection should cause less concern over invasions of privacy than other, more invasive uses of this technology.

But place these new neurotechnologies into the context of programs such as the West Virginia Pilot Project and a different picture could emerge. In early 2007, the federal government approved the West Virginia Pilot Project which provides health care for low-income, medicaid beneficiaries. This program, and ones like it, is an attempt to respond to the ‘obesity crisis’ and the overall rise in health care costs.

The Pilot Project is described as an effort to encourage states to test approaches using more "personal responsibility" in Medicaid programs. West Virginia will ask Medicaid beneficiaries to sign a contract, under which they agree "to do my best to stay healthy" and attend "health improvement programs as directed," seek routine medical checkups and screenings, attend all scheduled physician appointments, and take medications as prescribed. Failure to meet these contractual obligations results in decreased health care benefits.

Will physician directed pain control, weight-loss or anti-smoking programs include undergoing procedures that involve invasions of ‘cognitive liberty’ in the name of public health? The fMRI technique described in the above New York Times article characterizes it as leading to "long-term changes in the brain." And procedures such as transcranial magnetic stimulation (described by Jeffrey Rosen in the New York Times article The Brain on the Stand) are being studied for use in turning off or inhibiting behavior, curing the "defective" brain.

Neuroimaging is already being developed for use in lie detection. As the regions of the brain are being scanned for pain management purposes or to alter eating or smoking behaviors, will information be gathered on lack of compliance with physician and program directives? Will the physician be turned into an agent of the state; a policeman reporting on program violations that will negatively impact a patient’s access to health care?

As Professor Kolber points out, case law is merely suggestive of a right to "thought privacy" and how the courts will deal with this issue is unclear.