Opioid Prescribing and the Ethical Duty to Do No Harm

Kate Nicholson & Deborah Hellman, Opioid Prescribing and the Ethical Duty to Do No Harm, 46 Am. J.L. & Med., Forthcoming June 2020

Virginia Public Law and Legal Theory Research Paper No. 2020-48

14 Pages Posted: 28 May 2020 Last revised: 23 Jul 2020

See all articles by Kate Nicholson

Kate Nicholson

Independent

Deborah Hellman

University of Virginia School of Law

Date Written: May 27, 2020

Abstract

Doctors have two ethical duties: to cure disease or ease suffering and, also, to do no harm. The ethical duty to “Do No Harm” has been used to justify two sides of a pendulum swing in the philosophy of opioid prescribing for pain. In the 1990s, it was invoked to expand prescribing, and more recently to justify dramatic reductions in prescription opioid use. In this Article, we explore whether prescribing opioids for pain presents challenges that differ from the ordinary mandate physicians face as they balance the call for action with the imperative to do no harm [DNH].

We argue that the treatment of pain differs in three important ways. First, the fact that pain is present and occurrent reduces uncertainty about the need for action, and thus strengthens the reasons to act. Second, while DNH applies to both physicians and policymakers, each has distinct duties: physicians have a duty to the individual patient; policymakers have a duty to society. As a result, harm from drug diversion should weigh little when clinicians decide how to treat individual patients. Public health officials, by contrast, rightly consider societal effects. However, in doing so, they must adopt policies that mitigate the ethical burdens placed on physicians, respect the testimony of patients in pain, and pay particular attention to how policy guidance is likely to be implemented by others. Finally, we address what duties are owed to patients who are currently taking opioid medication, given evidence that they are experiencing significant barriers in receiving healthcare. We argue that once treatment has been initiated, there are special duties to these patients.

Keywords: chronic pain, pain opioids, opioid prescribing, “Do No Harm”, medical ethics, public health, civil rights

Suggested Citation

Nicholson, Kate and Hellman, Deborah, Opioid Prescribing and the Ethical Duty to Do No Harm (May 27, 2020). Kate Nicholson & Deborah Hellman, Opioid Prescribing and the Ethical Duty to Do No Harm, 46 Am. J.L. & Med., Forthcoming June 2020, Virginia Public Law and Legal Theory Research Paper No. 2020-48, Available at SSRN: https://ssrn.com/abstract=3611753

Deborah Hellman

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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