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New guidance from NICE on the assessment and management of chronic pain

Although the issue is not specifically addressed by NICE, litigation is likely to have a negative impact on chronic pain.

Chronic pain is defined as pain lasting for more than three months. Pain can be secondary to a chronic condition and can be explained on the basis of that condition. Osteoarthritis would be a good example of this. This paper focuses on chronic primary pain. This is defined as “pain with no clear underlying cause, or pain (or its impact) that is out of proportion to any observable injury or disease”. Examples include fibromyalgia, complex regional pain syndrome and other non-specific musculoskeletal pain. We see this in personal injury claims involving both minor and catastrophic injuries.

According to the British Medical Journal, 43% of the UK population (just under 28 million people) suffer from chronic pain. A Chronic Pain in Adults Study by Public Health England in 2017 put the figure at 34%. It is estimated that 1-6% of the population have chronic primary pain.

On 7 April 2021 the National Institute for Health and Care Excellence (“NICE”) published guidance (“the Guidance”) on the assessment and management of chronic pain. It’s main focus was on chronic primary pain. The Guidance recommends:

  • Shared decision-making between patients and healthcare professionals with a “collaborative, supportive relationship”.
  • A “people centred assessment” so patients are “at the centre of their care”. They should be encouraged to talk about their pain – how this affects their life and how life affects their pain. They should also explore their strengths as well as the impact pain is having on their life. What does living well look like? What skills do they have to manage their pain? What helps when their pain is difficult to control? What do they understand about their condition? What are their expectations for the future and the outcome of any treatments?
  • Recommended treatments include exercise programmes, cognitive behavioural therapy (CBT), acceptance and commitment therapy and acupuncture. Practitioners should discuss a care and support plan that sets out a patient’s priorities, abilities and goals but recognises the risks and uncertainties in all treatments.
  • Treatment with drugs including paracetamol, non-steroidal anti-inflammatory drugs, benzodiazepines or opioids is not

The Guidance recognises that many factors influence pain:

  • Social factors including deprivation, isolation and a lack of access to services. The latter two factors have, no doubt, been exacerbated during Covid lockdowns.
  • Emotional factors such as anxiety and distress.
  • Expectations and beliefs.
  • Mental health including depression and post-traumatic stress disorder.
  • Biological factors.

NICE recommend further research on the clinical and cost effectiveness of a number of treatments for managing chronic pain, including:

  • Mindfulness therapy.
  • CBT for insomnia in chronic pain.
  • Manual (kneading and manipulation of muscles) therapies.
  • Repeat courses of acupuncture.
  • Prescription of gabapentinoids or local anaesthetics.
  • Social interventions.
  • Relaxation therapy.
  • Laser therapy.
  • Transcranial magnetic stimulation.

NICE have, rightly, recognised the link between mental health, anxiety and depression and chronic pain. This is something that will come as little surprise to legal practitioners. Their common sense recommendations are also to be welcomed. The prescription of expensive painkillers, opioids and benzodiazepines rarely work and frequently result in dependence issues that make matters worse. Outcomes are significantly better when patients learn to live with their pain and thereby limit the control it exerts over their life.

Although the issue is not specifically addressed by NICE, litigation is likely to have a negative impact on chronic pain. An Australian study in 2003 (Chronic pain, work performance and litigation. Fiona M Blyth et al. National Library of Medicine) concluded that “litigation (principally work related) for chronic pain was strongly associated with higher levels of pain related disability, even after taking into account other factors associated with poor functional outcome”. Notwithstanding the science on the issue, it is probably naive to hope that we will see fewer chronic pain claims in litigation. One only has to google chronic pain claims to see the “industry” that has developed in this area. That said, one would hope that the Guidance brings some common sense and proportionality to chronic pain claims. But we will only see an end to claims for expensive treatments that don’t work if defendants rely upon the Guidance to argue that they are neither clinically justified or cost effective.

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