Chelmsford’s Legacy: Regulating Experimental Brain Interventions in the Public Interest (Abstract)

The former Chelmsford Private Hospital (this photograph from 1990). Source: The Daily Telegraph.

I paste below an abstract, with the above title, that I’ve recently submitted to the organisers of a neuroscience and society conference in Sydney. It combines two projects that I’m currently working on: the first, a paper on “the public interest” under the Health Practitioner Regulation National Law (NSW); and the second, a paper on the Chelmsford scandal from the perspective of the legislative and regulatory history of psychiatry and medicine in NSW in the ’60s through to the ’90s.

Barbiturate-induced deep sleep therapy (DST), electroconvulsive therapy, and cingulotractotomies to lesion the brain’s cingulate gyrus were among the many controversial brain interventions used, often in combination, by psychiatrist Harry Bailey and colleagues in Sydney’s Chelmsford Private Hospital from 1963 until the 1980s. Prompted by the Church of Scientology’s Citizen Commission on Human Rights, and later the NSW-based Public Interest Advocacy Centre, a Royal Commission into Bailey’s use of DST was established in 1988. Although Bailey committed suicide before giving evidence at the Commission, the resultant report found that the psychiatrist had been responsible for the deaths of more than 24 patients at Chelmsford, together with the suicides of another 19 previously under his care.

In this paper, I will briefly trace Bailey’s unethical misuse of various neuroscientific theories of the mind and brain he had learnt from, among others, Manfred Bleuler, the son of pioneering schizophrenia nosologist Eugen Bleuler, before detailing, in clear terms, the momentous regulatory changes that occurred in NSW after Chelmsford.

When reports of Bailey’s conduct reached authorities in the 1970s, the NSW regulator took no disciplinary action against the psychiatrist, finding that while the Medical Act 1938 proscribed “infamous conduct,” it did not allow interim orders against doctors for poor performance. Subsequent regulatory changes would transform the state’s approach to regulating health practitioners, leading to a new Medical Practice Act in 1992. Drawing on research recently commissioned by the NSW Medical Council on the public interest, this paper will show how regulatory reform after Chelmsford continues to shape health regulation today, including through public interest-based amendments recently made to the 2009 Health Practitioner Regulation National Law across all Commonwealth jurisdictions. Citing hypothetical and real examples, I will also explain what these important reforms mean for practising brain specialists who use or abuse novel experimental brain interventions, such as deep brain stimulation.

Pain in the Brain: Worker’s Compensation Claims for CRPS-I in Australia (Abstract)

I recently submitted the following abstract to the organisers of a conference called Neuroscience and Society: Ethical, Legal and Clinical Implications of Neuroscience Research, an event scheduled for mid-September, 2017, in Sydney. Since there’s apparently only a very limited pool of speakers, I’m not sure if my paper will be accepted for presentation. But the organisers have also noted that they will invite some attendees to develop posters for the conference; so, if I’m asked to do so, perhaps I’ll make a poster to outline my findings. (It would neatly dovetail my interest in design and research.) Some speakers will also be invited to submit their papers to Neuroethics—one of the journals I had in mind when I began this work (another was the Journal of Law and Medicine). Even if I’m not one of the lucky speakers, I think I’ll ultimately submit the article (of which this abstract forms a part) to Neuroethics.

As always, please do not use or reproduce this work without my express consent or permission. If you wish to quote from this work, please cite this website and this post. In CMoS style (for instance), use the following citation: Chris Rudge, “Pain in the Brain: Worker’s Compensation Claims for CRPS-I in Australia (Abstract),” Literature Law, Psychiatry, Politics: Notes by Chris Rudge (blog), July 18, 2017, http://www.rudge.tv/pain-in-the-brain/.

Pain in the Brain: Worker’s Compensation Claims for CRPS-I in Australia
Abstract

Neuroscientists disagree about the underlying mechanisms of chronic regional pain syndrome (CRPS), a debilitating neurological condition characterised by severe pain in the limbs. In CRPS type I, the patient typically suffers from an acute form of pain—one that is frequently not accompanied by any tissue damage or nerve lesion, and is typically disproportionate to the trauma that has incited the condition. These clinical paradoxes make CRPS-I a confounding disorder not only for scientists in medical settings, but for judges, tribunals, and claimants in legal settings.

My analysis of Australian neurolaw, undertaken in the context of working on the Australian Neurolaw Database, has revealed the high incidence of worker’s compensation claims brought in Australia by plaintiffs diagnosed with CRPS-I. While the majority of these plaintiffs are unsuccessful in attaining compensation (with most injuries found to be psychological or psychiatric, not physical or neurological, impairments), this paper analyses these tribunals’ processes, together with the legislative schemes that shape their statutory interpretation of neuroscientific evidence, to show how the legal system impacts on the assessment of chronic pain disorders, and raises crucial questions of great neuroethical import.

To compare these Australian legal cases to developments in the US, this paper will also detail a fascinating US worker’s compensation dispute of 2007 in which both the plaintiff and the defendant appointed separate pain experts to give evidence for their legal claims. What followed was a public disagreement between two distinguished professors of neuroscience about whether the plaintiff’s chronic pain could be detected in BOLD-contrast images (via fMRI). When the judge rejected a motion brought by the defence that that the plaintiff’s evidence was inadmissible—evidence that proposed chronic pain could be detected by fMRI—the defence settled the claim for an amount reportedly more than ‘ten times’ its original offer.

References

Camporesi, S., B. Barbara, and G. Zamboni. 2011. Can we finally ‘see’ pain?: Brain imaging techniques and implications for the law. Journal of Consciousness Studies 18 (9–10): 257–276.

Davis, K.D. 2016. Legal and ethical issues of using brain imaging to diagnose pain. PAIN Reports 1 (4): e577.

Reardon, S. 2015. The Painful Truth: Brain-scanning techniques promise to give an objective measure of whether someone is in pain, but researchers question whether they are reliable enough for the courtroom. Nature 518, 26 February. Retrieved July 5, 2017, from http://www.nature.com/news/neuroscience-in-court-the-painful-truth-1.16985.

Salmanowitz, N. 2015. The case for pain neuroimaging in the courtroom: Lessons from deception detection. Journal of Law and the Biosciences 2 (1): 139–148. doi: 10.1093/jlb/lsv003.

Wager, T.D. 2015. Using Neuroimaging to Understand Pain: Pattern Recognition and the Path from Brain Mapping to Mechanisms.” In The Brain Adapting with Pain: Contribution of Neuroimaging Technology to Pain Mechanisms, ed. V. Apkarian. 23–36. Philadelphia: Wolters Kluwer.