In the last 20 years the understanding and acceptance of pain conditions in both medical and legal contexts has advanced significantly. Advances in medicine have given doctors a better understanding of internal processes, and many causes of pain that used only to be identified after death can now be identified early with modern investigative techniques. Despite that, it can still be very hard to prove the "reality" of pain in the legal context.
This is emphasised by the curious fact that the Judicial Studies Board puts Chronic Pain in the Psychiatric chapter of the Guidelines. This despite the fact that a) many Chronic Pain Syndromes have obvious physical cause (such as the aftermath of major physical trauma and multiple complex surgeries), b) Reflex Sympathetic Dystrophy has a number of very obvious physical signs to confirm it and c) Fibromyalgia has well documented physical trigger points.
It is therefore not surprising that many chronic pain cases stand or fall on the credibility of the Claimant and the willingness of others to accept that he or she is genuine.
Many solicitors would prefer to see their clients' physical condition improved rather than blindly run on to court and for those help may be at hand. The English Pain Summit has published a report titled "Putting Pain on the Agenda" which identifies the need for clear standards and criteria, better awareness in the community at large, including the NHS, commissioning guidance and improved data gathering and assessment. This will not be a magic pill to treat the problem but we can hope that gradual improvements will make understanding and proof of chronic pain simpler.
For the bolder litigator who likes the civil rights angle, the paper points out that in 2010 the First International Pain Summit met in Montreal and agreed that access to pain management was a fundamental human right. And for the UK sufferer there may be some comfort in the government's recognition in 2012 that “chronic pain is a long term condition, either in its own right or as a component of other long term conditions”. It went so far as to suggest that people suffering chronic pain “… should have a timely assessment in order to determine the cause of the pain” and that should be followed up by appropriate treatment.
This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.
Please note that we do not give legal advice on individual cases which may relate to this content other than by way of formal instruction of a member of Hardwicke. However if you have any other queries about this content please contact: