Opioid contracts

Generally speaking, contracts are enforceable agreements that define a course of action and create obligations for all signatories. Nonetheless, ‘contracts’ developed for patient behaviours in diverse clinical contexts are typically not legally binding; hospitals and professionals cannot abandon patients who are in urgent care needs. Uncomfortable with the paternalistic and legal overtones of contracts, others propose achieving similar objectives with bilateral and individualised ‘patient agreements’.ⁱ

Opioid contracts are not standardised documents. Unlike regular consent forms that explain clinical consequences of accepting or foregoing various interventions, opioid contracts are often enacted to control patient behaviour, particularly when the patient has a history of addiction or when the veracity of the patient's pain report is doubted. For example, in a book on pain management for physicians, a sample opioid contract instructs patients that “in order to receive care for the treatment of pain…I must comply with the following rules”.5 Such ‘rules’ may include stipulations regarding participating in random urine drug screening, receiving prescriptions from a specific dispensing pharmacy and identifying one prescribing physician to prevent multiple prescriptions. Themes about goals of care seldom appear in opioid contracts, and consequences of breach range from the refusal to prescribe opioids to the cessation of service.

Trust and trustworthiness in healthcare

Trust is a central moral value that underpins human relationships. One view states that trust is an attitude that includes depending on a person's goodwill and motivations toward oneself or another. Trust involves the belief that the trustee will follow through with an action or a set of behaviours significant to the trustor and appropriate for the specific kinds of relationships in which they are engaged.6 Others argue that when we trust, we hold an expectation of moral integrity, believing that the trustee will act in our best interest or with integrity.7 We feel betrayed when the trustee fails to act as expected. Trust can also be extended to social and political systems such as institutions, healthcare systems and governments.8 The related concept of trustworthiness connotes a virtue of character; being trustworthy is about being the “sort of person who can be counted on, given who one is in relation to diverse others, to have the right feelings toward the right sorts of things, to deliberate and make choices, and to act from a trustworthy disposition”.9

Although taken for granted until called into question,6 trust is a foundational value in medicine. While some suggest that trust is ‘the scarcest of medical resources’,10 patients tend to identify ‘trust’ as a key component of the therapeutic relationship,11 which in turn, may impact important health-related behaviours, relationships and outcomes.12 Once trust is broken, it is extremely difficult, if at all possible, to re-establish.13

In physician–patient relationships, physicians are sought based on their epistemically privileged status—the expert knowledge, skills and ability they possess in addressing the specific health complaint. Such epistemic hierarchy traditionally provided justification for medical paternalism.14 Despite a shared identification of the good—the health of the patient—the epistemic asymmetries between a physician and a patient make the patient, the trustor, vulnerable to the physician, the trustee.14 ,15

This vulnerability is particularly concerning because modern medical science and technology come with risks, limitations and errors. The risk of iatrogenic harm can be heightened if trust is misplaced and results in an abuse of power through exploitation.16 Nonetheless, since physicians are gatekeepers of resources and information, patients often have no choice but to trust. Accordingly, the healthcare context is where trust relations are particularly fragile.

Trust and trustworthiness in chronic pain management

Given the importance of trust in physician–patient relationships, the apparent lack of mutual trust in chronic pain management, particularly when opioids are involved,17 is worthy of further consideration. Three interrelated issues are at stake: the subjectivity of pain experience, the distrust of patients’ motivation for seeking opioids for pain relief and the distrust that the physician holds the patient's well-being—namely, relief of pain and suffering—to be of primary importance.

In a medical culture that relies on objective indicators of disease processes, the clinical assessment of chronic pain and suffering is difficult, particularly when the pathology, even if known, does not always correspond to the reported severity by the patient. Such subjectivity may encourage some physicians to question the truthfulness of the patient's testimony, as symptoms “may become viewed as ‘exaggerated’ or even ‘feigned’”, thereby reducing many chronic pain management ‘problems’ to doubts about patients’ trustworthiness.18 Random drug testing, despite various ethical and legal concerns, is sometimes requested to overcome the ‘imprecision’ and potential distrust of patient testimony of their symptoms.

The public health harms associated with POA have fuelled fears about iatrogenic addiction and whether patients are ‘malingering’, ‘drug seeking’, ‘abusing’ and ‘diverting’ medications; physicians must rule out these ‘ulterior motives’ or fraudulent attempts to secure disability compensation.18 The resulting policy environment is such that opioid drugs are tightly controlled and surveilled. Physician concerns about professional and legal consequences of prescribing and widely publicised cases and epidemiological studies of deaths from prescription opioids have reinforced a culture of ‘pharmaco-vigilance’19 that focuses on distrust, scepticism and risk management strategies.20 Physicians may also worry about being stigmatised by their peers for imprudent prescribing and losing professional authority over the patient.21 Combined with the limited physician education and training in both chronic pain and addiction,22 adopting a position of distrust may protect against being deceived or manipulated by untrustworthy patients who report objectively unverifiable symptoms.

One strategy to manage such subjectivity and distrust is the use of opioid contracts. As one author observed, “we are moving away from trusting patients and toward reliance on contracts, drug screens, and objective functional outcomes. It is as though we believe that we can change the fact that pain is a subjective experience—to change that we do not know for certain if anyone really has pain or pain relief”.19 While the data on the actual rate of POA and diversion are unclear, patients who deceive their physicians in order to divert medications are not always easy to detect,23 rendering physicians uncertain about how to best treat patients with a history of or predisposition to addiction. In trusting that the patient is being truthful about his/her pain symptoms and not manipulating the physician who beneficently attempts to reduce the patient's pain and suffering, the physician risks prescribing medications that may produce harm beyond the general side effects of these medications. The opioid contract is thus used to overcome epistemic uncertainty by constructing a “pseudo-trust which will eventually… restore the full-blooded trust which is part of a good physician-patient relationship”.3

Proponents of opioid contracts argue that such documents can help increase patient responsibility and ease physician worries by clearly stipulating expectations and the requirements of adherence for therapy. As Fishman remarks about opioid contracts, “this unproven but widespread practice speaks directly to the importance we place on trust or perhaps even more to distrust”.19

Opioid contracts also attempt to prevent potential harms from a breach of the ‘contractual’ patient–physician relationship. From a distributive justice perspective, physicians are obligated to be responsible stewards of scarce healthcare resources, particularly for addictive opioid analgesics. From a perspective of non-maleficence, it is not only about doing no harm to the patient; in cases of potential medication diversion, it may also be about minimising public health risks, including preventing harm to those who might receive opioids from the patient and related concerns such as violence and other illegal activities.

Trust, distrust and trustworthiness in opioid contracts

While having clear expectations in general is part of informed consent and can empower patients, it is unclear that opioid contracts as they are currently used serve such goals.25 In most other treatment contexts, patients are presumed to be truthful in their testimony, without the heavy burden of proof to demonstrate trustworthiness.26 For example, in the transplant context, physicians need to determine that a patient can be trusted to take care of a transplant organ. Yet, contracts are rarely part of the transplant process—they are not enforceable after the transplant, and abandoning patients who are ‘non-adherent’ would be problematic.26 In contrast, due to social stigma,27 patients with chronic pain are often discredited and hold a ‘spoiled identity’ with presumed ‘blemishes of individual character’.28 Requiring demonstration of trustworthiness through opioid contracts thus places a disproportionate burden of responsibility on these patients to convince their physicians that their pain is real and they are ‘deserving’ of opioids.

While the bioethics literature on trust focuses on patients’ trust in physicians or other healthcare providers, there has been more awareness that physician trust in patients also has significant impact on the provider–patient relationship and patients’ access to appropriate treatment.3 Members of vulnerable, disenfranchised and historically underserved groups are often seen as being both epistemically and morally less trustworthy by healthcare providers.29 This is particularly concerning for patients living with chronic pain, who rely on strong pain medications for extended periods. Accordingly, there may be a heightened climate of suspicion or distrust of patients with pre-existing vulnerabilities who report chronic pain, such as those that bear the labels of ‘psychiatric patient’, ‘addict’ or ‘difficult patient’.

People living with chronic pain who also suffer from addictions and other mental disorders thus may be disproportionately targeted for opioid contracts. Indeed, some physicians may be reluctant to treat chronic pain patients with addictions histories.30 Some providers may assume irrationality and attribute to these patients a credibility deficit regarding their knowledge of their bodies, their experiences with medications and both licit and illicit drugs, and their reports of pain and suffering. In this way, opioid contracts may send the clarion message that the physician does not trust the patient.31 They also represent a kind of testimonial injustice where certain patients may receive an unfair undermining of their credibility based on a prejudice held by the physician.32 In such situations, the patient may be harmed in their capacity as a knower by being marginalised from trustful dialogue. While physicians should be commended for doing due diligence in encouraging safer medication use, there is limited evidence for the effectiveness of opioid contracts.25 Nonetheless, these documents are not ethically benign interventions. They may create an adversarial environment that could harm the therapeutic relationship.33 They may also further marginalise chronic pain patients, as “the behaviour of the ‘illegitimate’ drug user or ‘street addict’ is seen not only as conceptually and behaviourally separate from that of the ‘legitimate’ (prescribed) drug user, but is, in fact, viewed as an impediment to achieving optimal pain management of ‘real’ pain patients”.34 Using opioid contracts to discursively and clinically separate a whole subgroup of patients is not only discriminatory, it may also reinforce a power dynamic that devalues the addicted individual's experience with pain based on the physician's assessment of his/her moral character or diagnostic label.

Rebuilding trust through epistemic humility

If physicians assume a position of distrust in their chronic pain patients, they may have difficulty believing that the patient will be safe or responsible in taking opioids. If patients suspect that their physician distrusts and stigmatises them, they may be reluctant to fully engage in treatment decision-making and follow-up. This may foster the undertreatment of pain and create difficulties of balancing the conflicting obligations of supporting and respecting patient autonomy, promoting patient well-being and protecting the patient, society and physician from potential harm. A transparent and collaborative approach is required if physicians demand that their chronic pain patient demonstrates trustworthiness. We propose that this approach may be achieved through adopting a disposition of epistemic humility.

Epistemic humility is a commitment that arises out of professionals’ acknowledgment of the boundary of their expert domain as well as their fallibility.14 In the chronic pain context, it means a commitment to realistically assess what one knows and does not know about a patient's phenomenology of illness, and to restrict one's knowledge claims only to what one actually knows about his/her specialised domain. Giving the patient space to describe what it is like for him or her to live in pain is ethically significant because the patient's narrative becomes central to the clinical encounter. Epistemic humility is a recognition that knowledge creation is an interdependent and collaborative activity: both the physician and the patient are counting on each other in investigating a full picture of the patient's lived experiences and determining the most appropriate care plan in the larger intertwining sociopolitical context of opioid prescription, addiction prevention, stigma and pain management. Such collaborative approach requires all parties to withhold premature judgement and to build knowledge on each other's perspectives. It also helps to sharpen our methodology and accuracy when we respond to critiques and challenges posed by others inside and outside our specialised domain.14

A commitment to epistemic humility has both epistemological and ethical significance, particularly in situations of power hierarchy. Experience in scientific and clinical data regarding pain relief and addiction is certainly essential in determining appropriate care for patients with chronic pain and educating them regarding addiction and relapse prevention. However, such clinical experience may not suffice in facilitating understanding of how structural operations of power also contribute to chronic pain patients’ subjective experience, particularly of social isolation and stigmatisation.27 By calling for a critical examination of the power structures that downplay the credibility or relevance of the claims of people with chronic pain, particularly those living with addictions, a commitment to epistemic humility helps to explore how biomedicine, which is focused on objective indicators of disease, has historically underserved people suffering from chronic pain. Here we can see how the culture of biomedicine inflects the discursive interactions between the patient and provider. Thus, chronic pain sufferers as a group may experience a credibility deficit because they have chronic pain.30 Add the associated stigmas, prejudices and social harms inextricably linked to chronic pain and addiction, the burdens and potential harmful consequences of testimonial injustice shouldered by the patient is heightened.

In seeking a collaborative approach that attends to clinicians’ and patients’ respective perspectives, a pledge to epistemic humility can help to acknowledge the importance of situating knowledge in local experiences and recognising how power influences knowledge production in chronic pain management.34 By recognising that people living with chronic pain have unique epistemological access to aspects of realities of social relations,35 and that consideration of their voices is necessary in the co-creation of knowledge and appropriate care plan, a commitment to epistemic humility can guard against authoritarian approaches to ‘managing’ chronic pain patients and confirm physicians’ goodwill. Engagement of the perspectives of those most affected in the collaborative process can help to build trust and collect essential information in determining responsible and responsive pain relief strategies.

Prescribing decisions are not simply or always individual actions. They are also structural phenomena, the product of intersecting concerns and actions of patients and clinicians, as well as professional and political organisations. Pain relief strategies are embedded within a complex set of social relations, practices and policies that structure patients’ selfhood and can significantly affect their ability to exercise autonomy with respect to their pain management.36 It is thus important to examine the power dynamic and treatment decision-making processes to see if anyone is wronged in his/her capacity as a knower. For example, we need to ask whether the experiences, interests and disagreements of patients with chronic pain may be prematurely rejected as not credible.

In the age of patient-centred care, actively collaborating with patients with chronic pain in individual care decisions has epistemic and ethical values. In acquiring a full appreciation of the state of affairs, we need to acknowledge that patients are likely most knowledgeable about what their subjective pain and various clinical and nonclinical management strategies mean to them—they may be the ‘experts’ in that regard. Clinical expertise in assessing various conditions, while important in promoting medical care and sound policies, is only part of the story. In determining appropriate pain management and practice guidelines, incorporating patients’ perspectives or assessment of when their pain is most acute, what pharmacological and other strategies they have tried to ease such pain, their own resources in managing their conditions, their concerns regarding the use of addictive medications and their experiences and perspectives on preventing or treatment addiction may all be helpful.