Introduction	Part 2	Part 3	Appendices
Part 1	Introduction to Part 2	Introduction to Part 3	Appendix A
Introduction to Part 1	Chapter 6	Chapter 9	Appendix B
Chapter 1	Chapter 7	Chapter 10	Appendix C
Chapter 2	Chapter 8	Chapter 11	Appendix D
Chapter 3	Conclusions to Part 2	Thesis Conclusions	Appendix E
Chapter 4			Appendix F
Chapter 5			Bibliography
Conclusions to Part 1			Books and Articles
			Legal Cases

Chapter 3: Judging the ‘ability to feel pain’

Introduction

If functional,[i] error-free, criteria exist for determining consciousness then, from a judgement that an individual lacks consciousness, it is possible to conclude that he lacks the ability to feel pain. It is simply a matter of deduction. Equally, if functional, error-free, criteria exist for diagnosing PVS then the inference that a PVS patient cannot feel pain is immediate because lack of consciousness is a necessary condition for PVS. But, as has been shown - in Chapters 1 and 2 in relation to consciousness, and as is shown in Chapter 4, in relation to PVS - such criteria do not exist. The aim of the present chapter is to determine whether there are functional, error-free, independent grounds[ii] for judging that an individual cannot experience pain.

In the course of this chapter it will be argued that ‘pain judgements’ - that is medical judgements on a patient’s ability to experience pain - are, in principle, susceptible to error. In particular, the assertion that a PVS patient cannot experience pain, considered as an independent proposition, must be regarded as open to question. It will be further argued that ‘pain judgements’, although they have the appearance of being scientific statements of fact, are often surrogates for value judgements. The distinction is of importance since if such propositions are considered to be simply scientific statements then, in determining their truth, the human consequences of any such statements are of no relevance; whereas, if such propositions are considered to be value judgements, such considerations are of the essence.

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The chapter is divided into six sections. Section 1 considers the scientific evidence for making ‘pain judgements’; and, in particular, whether the presence of pain in PVS patients can be definitively established by some measurement of their brain or other processes. Section 2 investigates some different meanings associated with the term ‘pain’ and suggests that the existence of such ambiguities can distort ‘pain judgements’. Section 3 gives some examples from recent medical history of situations in which it is now accepted that pain can be experienced but where the medical consensus at the time was strongly to the contrary. This suggests that the current near-unanimity of medical opinion to the effect that PVS patient cannot experience pain need not necessarily be regarded as being determinative. Section 4 considers the making of ‘pain judgements’ from a philosophical perspective. The analysis of the grounds used for pain judgements played a considerable role in Wittgenstein’s philosophy and his arguments against the validity of a distinction between ‘pain’ and ‘pain behaviour’ are of considerable relevance to any discussion concerning pain judgements in respect of PVS patients. PVS patients exhibit ‘pain behaviour’ - that is the grimaces, writhing and other bodily actions which are normally considered as manifestations of pain - and, if the distinction between ‘pain’ and ‘pain behaviour’ cannot be fully sustained, the conclusion that PVS patients cannot experience pain is weakened. Section 5 considers sources which directly support the contention that PVS patients may experience pain. Section 6 seeks to draw some conclusions from the discussion.

Section 1: A scientific approach to pain judgements

There is a near-universal[iii] acceptance, in both medical literature[iv] and in legal cases[v] of the proposition that PVS patients cannot feel pain.

Paradoxically, there is also a widespread acceptance in philosophical literature of the so-called ‘incorrigibility’ of pain judgements - i.e. that an assertion by an individual that they are in pain is not open to question by another. This is, of course, not to deny that it is possible to pretend to be in pain, but rather to claim firstly, that it is not possible for another to be mistaken about whether they themselves are in pain; and secondly, that it is not possible to definitively prove that another is lying in respect of such assertions.

The acceptance of the incorrigibility of pain judgements may suggest that such judgements are entirely private and that an independent observer can never make a definitive ruling as to whether or not another is in pain. It is, however, beyond contention that if a patient has no consciousness then they cannot experience pain. The ambiguities in the term ‘consciousness’ have already been mentioned,[vi] but if ‘consciousness’ is interpreted as ‘experiential consciousness’,[vii] then the assertion that:

‘If Patient X lacks ‘experiential consciousness’, then he cannot experience pain.’

is irrefutable. But assuming that consciousness must in some way be manifested in the brain, and absent cases where all brain activity has ceased (which does not occur in PVS), we have seen that there is no centre of the brain uniquely associated with ‘experiential consciousness’. Thus the existence of ‘experiential consciousness’ is not open to experimental verification, and accordingly the common inference that a patient has no pain because they have no consciousness[viii] is no explanation at all. I have found confirmation of this view from Dennett, who is particularly scathing of such an assertion[ix] and suggests that it has ‘the smell of a begged question’ and that its ‘utility evaporates if we try to construe it as an ‘analytical truth’.’ His argument is of particular relevance to the situation of PVS patients and is worth quoting at length:

“The persistence of reflex responses to painful stimuli under anaesthesia is an obtrusive and unsettling fact, in need of disarming ... Yet they[x] assure us that analgesia ... is complete, despite the occurrence of ‘behaviour’ that is held - by some schools of thought - to be well nigh ‘criterial’ for pain. The presence of reflexes shows that the paths between nociceptors and muscles are not all shut down. What special feature is absent? ... The short answer routinely given is: consciousness. General anaesthetics render one unconscious, and when one is unconscious one cannot feel pain, no matter how one’s body may jerk about. What could be more obvious? But this short answer has the smell of a begged question ... the principle[xi] has no particular warrant, save what it derives from its privileged position as one of the experience-organising, pretheoretically received truths of our common lore, and in that unsystematic context it is beyond testing. Until we have a theoretical account of consciousness, for instance, how are we to tell unconsciousness from strange forms of paralysis, and how are we to tell consciousness from zombie-like states of unconscious activity and reactivity? The paradigms of unconsciousness that anchor our acceptance of this home truth principle are insufficiently understood to permit us to make the distinctions we need to make in this particular instance.” [xii]

Thus, we can draw the conclusion that if the goal is to establish that a PVS patient cannot experience pain, the path through attempting to establish the absence of ‘experiential consciousness’, is a mirage.

Conclusion _3-1 : The assertion that, in PVS, pain cannot be experienced because consciousness is absent, is specious.

There may, however, be other paths; it may be that there are areas of the brain uniquely associated with the experience of pain, so that if these areas are ‘inactive’ or irreparably damaged we could conclude that pain could not be experienced. As applied to PVS patients this procedure might be simplified if it was possible to determine areas of the brain damage to which is uniquely associated with PVS. Because, if such was the case, it might be concluded independently of any judgement as to patient consciousness or any further diagnostic procedure that a diagnosis of PVS might indeed imply that a PVS patient could not experience pain. In essence, two questions are posed:

‘Are there areas of the brain damage to which is uniquely associated with PVS?’

‘Are there areas of the brain uniquely associated with the experience of pain?’

It is to these questions that we now turn.

Are there areas of the brain uniquely associated with PVS?

The ‘Multi-Society Task Force on PVS’ reported that:

“Neurodiagnostic tests alone can neither confirm the diagnosis of a vegetative state nor predict the potential for recovery of awareness.” [xiii]

and that neither computed tomographic nor magnetic resonance imaging[xiv] nor PET scans[xv] nor studies of cerebral blood flow[xvi] can locate definitive areas of damage uniquely associated with PVS.

A working party report of The Institute of Medical Ethics[xvii] found that:

“No available laboratory diagnostic test can indicate that a patient is permanently vegetative. Research investigation of some vegetative patients has shown a cerebral metabolic rate equivalent to that in deep anaesthesia. Computed tomography and magnetic resonance imaging only show evidence of severe brain damage, not that the cortex as a whole is out of action, and electroencephalography is unhelpful.” [xviii]

Andrews[xix] also agrees that neurodiagnostic tests cannot confirm the diagnosis of PVS, though his non-use of these tests was criticised by Cranford[xx] who argued that both the ‘Multi-Society Task Force on PVS’ and the Royal College of Physicians had considered neurodiagnostic test to be of some use in the diagnosis of PVS.

The conclusion follows that:

Conclusion _{3 -2} : As yet, no particular areas of the brain have been identified, damage to which, or whose inactivity, is uniquely associated with PVS. Hence, even if areas of the brain were to be identified which were uniquely associated with the experience of pain, no theoretical conclusion could be drawn ruling out the possible excitation of these areas - and, presumably, the experience of pain - in PVS patients.

Of course, it may be that if such areas were identified their level of excitation could, in individual cases, be determined practically by a monitoring of the patient’s brain; the conclusion being drawn that, in the absence of excitation, there was no pain. Can such areas be identified?

Are there areas, or processes, of the brain uniquely associated with the ability to experience pain?

On initial consideration it might be thought that this question could be easily resolved by a, theoretically simple, experiment: all that is needed is to monitor the brain of a subject for activity whilst they simultaneously report on their experience of pain; these are then correlated so that it is subsequently possible to identify the location of ‘pain centres’. Once such ‘pain centres’ were established, then, theoretically, the brains of PVS patients could be monitored for activity at those centres and, in the absence of activity, it would be clear that the patients were not experiencing pain.

Such experiments have indeed been carried out and have established the ‘cingulate cortex’ and the ‘frontal cortex’ as the prime candidates but the results were by no means definitive.[xxi] The subjects involved in such tests were, necessarily, conscious - they had after all to report on their feelings of pain - and they had not suffered brain damage. It is known, however, that after injury the brain is often subject to considerable reorganisation,[xxii] so that even if the ‘pain centres’ for conscious subjects were determined with absolute precision - which is not the case - judgements could still not be made regarding the sentience of PVS patients’ ability to experience pain.

There is uncertainty as to the broad location of such ‘pain centres’ or even as to their existence; there is not even consensus that pain is primarily a cortical activity.[xxiii] Indeed the very coherence of the concept of pain centre has itself been questioned. This is evidenced by the controversy between the ‘specificity theory’, and the ‘gate theory’, of pain, to which we next turn.

Pain research was long dominated by the ‘specificity theory’ which proposed that ‘pain was a specific sensation subserved by a straight-through transmission system’.[xxiv] Such theories led to attempts by neurosurgeons to cut these ‘pain pathways’ in an effort to mitigate the severity of the pain experienced by some patients; however the interventions ‘so frequently ended in failure’.[xxv] Current research focuses on the ‘gate control theory of pain’ - proposed by Melzack and Wall in 1965 - which suggest that there is a neural mechanism in the spinal cord which acts as a gate which, by means of complex feedback mechanisms, controls the flow of information to the brain, and that the pain mechanism itself is more complicated and more pervasive than envisaged by the ‘specificity theory’. Melzack and Wall believe that:

“... [the concept of ‘pain centres’] is pure fiction unless virtually the whole brain is considered to be the “pain centre” because the thalamus, the limbic system, the hypothalamus, the brain stem reticular formation, the parietal cortex, and the frontal cortex are all implicated in pain perception.” [xxvi]

Howard Fields and Donald Price in their essay on pain,[xxvii] reached a similar conclusion though from a more philosophical perspective:

“There are limits to what objective measurement can tell us about the pain experience ... it is not clear that it is possible to determine the site or sites in the brain where the subjective experience actually ‘occurs’. In fact it is arguable whether a subjective experience has a spatial location.” [xxviii]

However, some believe the concept of pain centres to still have a heuristic value:

“Meanwhile research at a neurophysiological level was going on, with much argument centred on the question whether specific pain mechanisms exist or not. Are there specific pain receptors, pain nerve fibres, and pain centres in the brain? The deep scientific and philosophical implications of this question are discussed in a concluding section. Rey believes that the specificity idea is heuristically useful and so must be retained for the moment, although it is probably invalid and may need to be replaced eventually.” [xxix]

Dennett believes that there is no way of getting such ‘pain centres’ into the theoretical model without committing ‘flagrant category mistakes’; such discussion risks confusing the personal and theoretical level of explanation[xxx] - as occurs, for example, in the reassurance given by an anaesthetist to a patient who questions ‘Does it stop the pain?’:

“... his further reassurance that of course the anaesthetic does stop the pain is not yet another consequence of any theory of anaesthesia that he knows, so much as a ‘philosophical’ dogma[xxxi] - quite reasonable, no doubt - that plays a useful role in his bedside manner.” [xxxii]

Dennett is led to conclude that our intuitions on pain are deeply, perhaps irretrievably, inconsistent and that:

“What must be impeached is our concept of pain. A better concept is called for ...” [xxxiii]

Such a radical reappraisal of the concept of pain is, for our purposes, unnecessary. A narrower conclusion, amply supported by the above analysis, is sufficient:

Conclusion _{3 -3} : Excepting cases where all brain activity is absent, there are no areas, or processes, of the brain that can be uniquely associated with the experience of pain to the extent that the non-activation of these areas, or the absence of these processes, would justify the conclusion that pain is not present.

Because all brain activity is not absent in PVS patients, a further conclusion can be drawn:

Conclusion _{3 -4} : In PVS there are no areas, or processes, of the brain that can be uniquely associated with the experience of pain to the extent that the non-activation of these areas, or the absence of these processes, would justify the conclusion that pain is not present.

However, Dennett’s analysis permits a further conclusions of great importance for our discussion of pain judgements in relation to PVS patients. He argues that pain judgements are intimately connected with moral judgements:

“There can be no denying (though many have ignored it) that our concept of pain is inextricably bound up with (which may mean something less than ‘essentially connected with’) our ethical intuitions, our sense of suffering, obligation, and evil.” [xxxiv]

Dennett conceives of this connection, not in the simple Utilitarian sense of moral judgements following from pain judgements, but in a much more intimate way. Consider, for example, that in a Utilitarian ethic the ability to experience pain is both a necessary, and a sufficient, condition for being considered an ‘Object of Intrinsic Moral Worth’.[xxxv] This proposition has the appearance of giving a scientific, experimentally verifiable, criterion - the ability to experience pain - for ascribing moral value. Dennett’s point is that this is not so; in reality the proposition is tautological. Pain judgements require a context within which they are operative; they are only applicable to certain categories of subjects - and these are the very subjects considered worthy of moral consideration. This, argues Dennett, is shown by our reluctance to accept the idea that robots[xxxvi] might feel pain; this reluctance stems not from a judgement on the possible internal mechanisms of robots but from a judgement that robots are not, to us, the subject of moral consideration.

Wittgenstein makes essentially the same point when he suggests that we cannot ascribe pain to a stone[xxxvii] but look ‘at a wriggling fly and at once these difficulties vanish and pain seems able to get a foothold here.’ [xxxviii]

Further evidence for this perspective can be found in the considerable controversy[xxxix] that has existed over whether animals can experience pain. The mistake here is to assume that this is a question capable of a purely scientific determination.

Conclusion _{3 -5} : The ascription of pain is not amenable to a purely scientific, experimentally verifiable, determination but is intimately connected to whether the subject is deemed to be a suitable candidate for inclusion in a moral calculus (i.e. is an ‘Object of Intrinsic Moral Worth’).

Applied to PVS patients, this perspective has interesting consequences. It suggests that the judgement that they are not ‘persons’[xl] is the logically prior proposition, and that the assessment that they cannot feel pain is a corollary of this, and not conversely. It may also account for the forcefulness with which the supposed inability of PVS patients to experience pain is often asserted; a vehemence which is all the more unjustifiable if it is accepted that appeals to a lack of consciousness are quite beside the point. However, once ‘ability to experience pain’ is seen to function as an implicit surrogate for ‘personhood’, then it is clear that the judgement of ‘inability to experience pain’ is playing a symbolic role and the reason underlying the forcefulness then becomes obvious.

The uncertainty implicit in ‘pain judgements’ has been one focus of this section. However, there are also historical reasons for recognising that ‘pain judgements’ - though often dogmatically asserted and brokering no opposition - can be fundamentally wrong. Descartes, for example, believed that animals could not feel pain and, up to recently, the same was believed of newborn infants. There are also examples of supposed methods of anaesthesia which, despite the protestations of patients, were incorrectly judged to preclude the experience of pain. In order to permit a fuller discussion of these examples it is first necessary to suggest some distinctions in the use of the term ’pain’ and it is to this task we now turn.

Section 2: Ambiguities in the term ‘pain’

It is possible, by considering one’s own individual experience of pain, to disentangle some of the strands that are usually combined into the unitary judgement ‘I am in pain’. A number of distinctions assist in this.

The first distinction is that between the ‘concept of pain’ and the ‘unanalysed experience of pain’, which is akin to the distinction between symbol and object.

The second distinction is that between ‘pain’ and ‘suffering’ - ‘pain’ being the term appropriate to an immediate experience whilst ‘suffering’ relates to the perception of that experience viewed against the image of ‘self’ considered as an continuing entity, i.e. possessing a past history and with future expectations.

A third distinction is that between the ‘experience of pain’ and the external ‘behavioural manifestations of pain’; though Wittgenstein, for example, argues that attempts at such a distinction are misplaced. Wittgenstein’s argument is considered in Section 4.

These distinctions are of importance to the debate on whether PVS patients can experience pain. For example, Wittgenstein‘s argument suggests that since PVS patients manifest pain-behaviour[xli] they must be regarded as being in pain; (however, it could be argued in response that PVS patients do not manifest ‘real-‘pain behaviour” but some kind of ‘pseudo-‘pain behaviour”; this objection will be considered in Section 4). The distinction between the ‘experience of pain’ and the ‘concept of pain’ suggests that pain could be experienced in the absence of ‘reflexive consciousness’ - that is, with a lower level of consciousness than is normal - and thus operates in favour of the proposition that PVS patient can experience pain.

The distinction between the ‘unanalysed experience of pain’ and the concept ‘pain’

The distinction suggests that, at the most basic level, the unanalysed experience of pain - the feeling of the ‘burn on the hand’ - can be perceived before conceptual thought intrudes. The task of conceptual thought is to compare the experience to previous experiences, and to decree that it belongs with those which were previously categorised as falling under the concept of ‘pain’ - i.e. that it be spoken of as ‘painful’. The first distinction then is between the ‘feeling-pain’ and the ‘concept-pain’. Some have objected to this distinction and suggested that, in the absence of the concept of pain, pain is impossible.[xlii] Once embarked on this path of analysis it is possible to argue that the experience - the ‘burn on the hand’ - can only be considered to be painful by me, if there is a me - a ‘self’ to experience the pain - but a ‘self’ not in the experiential sense of a ‘subject of feeling’ but rather a ‘self’ in the conceptual sense of the self/other distinction. For example, an infant does not develop[xliii] a sense of self until some 12 months old; until then he regards ’himself’, ‘his mother’ and ‘the world’ as coterminous; the objection would suggested that such an infant cannot experience pain since they have not a sense of self.[xliv] This suggests that the correct formulation of the distinction is between ‘feeling-pain’ and ‘concept-self-pain’ rather than, simply, ‘concept-pain’.

This might seem an overly intellectual way to construe pain judgements, yet Descartes based his argument that animals could not experience pain - nor indeed have any ‘experience’ - on grounds such as these. In Descartes’ view, only beings with consciousness[xlv] could experience pain; to him, animals were just machines, possessing no consciousness. Williams, as mentioned earlier,[xlvi] has commented on what he considered a fundamental confusion in Descartes philosophy between ‘consciousness’ and ‘reflexive consciousness’ :

“An interesting case in this connection is pain. It would be generally agreed that pain is a conscious experience: one who is in pain feels something. Now it may, further, be true that a language user who is in pain will believe that he is in pain, unless perhaps he is such a reduced state that he has lost effective hold of his language use. If one possesses and can use the concept pain, its application to oneself will be elicited by ones being in pain, and in this pains importantly contrasts with wants. But non-language users can be in pain (though Descartes ... denied it); they have no concept of pain they can apply to themselves, and to them we cannot in all seriousness ascribe in addition to their pain, a belief that they are in pain.” [xlvii]

Williams argues that this confusion easily leads to the erroneous suggestion that if reflexive consciousness is absent then so is consciousness and also the ability to experience pain. The confusion is that between ‘experiencing something’ and ‘experiencing that something as pain’ - the latter obviously requiring use of the concept 'pain' and hence a ‘reflexive consciousness’. The refusal to accept the distinction between the ‘experience of pain’ and the ‘concept of pain’ leads to the conclusion that experience cannot occur without language; this would imply the bizarre conclusion that a child brought up without language, but who is otherwise normal - as in the so-called ‘enfant sauvage’ cases[xlviii] - is necessarily [xlix] incapable of experiencing pain. The line of reasoning would also imply, for example, that an infant could not be conscious of its first steps without knowing that its movements were to be properly categorised as steps (in contrast to, say, hops). An even more striking thought experiment is to imagine a desert nomad who one day sees snow - a phenomenon utterly unknown to him and which had never before occurred in that desert. The experience cannot be encompassed within his existing language and is so foreign to it that it cannot even be hinted at. Must we then be forced to say that - in the absence of a capacity to describe it - the feeling of snow on his skin did not happen?

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It may be possible to argue against the distinction from another direction - that the immense difference that we attribute to the distinction between pain and pleasure lies not in the experiences themselves, but rather in the construction that we place upon them; such a construction would necessarily be conceptual. This position is put forward by Alan Watts:

“What we feel is to an enormous and unsuspected degree dependent on what we think, and the basic contrasts of thought ordinarily strike us as the basic contrasts of the natural world. We therefore take it for granted that we feel an immense difference between pleasure and pain. But it is obvious in some of the milder forms of these sensations that the pleasure or the pain lies not so much in the feeling itself as in the context. There is no appreciable physiological difference between shudders of delight and shudders of fear ... but the context of the feeling changes its interpretation, depending on whether the circumstances which arouse it are for us or against us.” [l]

But this is really an argument, not against the inability to experience in the absence of language but, against assuming that our methods of categorisation have any universal validity. In fact Watt’s contention presupposes that the experience is separable from its categorisation and may be explained by a further distinction - that between ‘pain’ and ‘suffering’.

The distinction between ‘pain’ and ‘suffering’

‘Pain’ can be distinguished from ‘suffering’, by noting that the term ‘suffering’ is used to refer to the experience of pain when viewed against one’s past ‘life story’ and future plans and expectations; ‘pain’ refers to the unanalysed experience itself.[li]

The distinction is one that is not commonly used; usually when we speak of our pain, we are conscious of the actual experience - our stinging cheek, having been just slapped across the face - and the implication for us of that experience, both now (our dignity is affronted), in the future (the slap may have caused injury so we will have future pain or it may mean that certain relationships will be affected) and in the past (we may have to rewrite our ‘life stories’); hence, usually our ‘pain’ and ‘suffering’ are conflated.

Watt’s observation - on the enormity of the difference between ‘pain’ and ‘pleasure’ judgements - is accounted for in noting that it is the context that turns an experience firstly into a ‘pain’ and thence into a ‘suffering’ and the ‘immense difference’ is not so much between ‘pain’ and ‘pleasure’ as between ‘suffering’ and its counterpart.

The distinction between ‘pain’ and ‘suffering’ permits the conclusion that, though the absence of reflexive consciousness is a bar to ‘suffering’, it is no bar to the experiencing of ‘pain’. Furthermore, it would follow that - if the absence of conceptual abilities was accepted - neither animals nor newborns[lii] nor older infants experience ‘suffering’ though they may well experience ‘pain’.

Conclusion _{3 -6} : It is possible to draw a distinction between the ‘pain’, the ‘concept of pain’ and ‘suffering’, and to conclude that, though the possession of reflexive consciousness is a precondition for experiencing pain ‘as pain’ or for suffering, it is not so for the experience of pain itself.

Section 3: Examples of reversals of a consensus that pain cannot be experienced.

Historically, the question of whether animals can experience pain has been contentious. Descartes, for example, believed that animals were unable to feel pain; though the consensus, in modern times, is that they can. However, it is not only philosophers who disputed the ability of certain categories of individuals to experience pain; these controversies did - and still do - occur in medicine. For example, up to quite recently it was believed that newborn infants were incapable of experiencing pain, and there is currently a controversy as to the developmental stage required of the foetus for it to begin to feel pain. There have also been disputes over whether certain medical procedures could rightly be called anaesthetic or were, in fact, just amnesiac; some arguing that the difference didn’t matter.[liii]

In this section I examine these controversial pain judgements firstly, in relation to animals; secondly, in relation to newborn infants and foetuses; thirdly in relation to certain anaesthetic practices. The relevance of these examples is that they show that the existence of a near-unanimity in medical opinion on the impossibility of pain being experienced - as happens currently in relation to PVS patients - is no guarantee as to its truth.

Animals

The close relationship between judging an individual as having the ‘ability to feel pain’ and being an ‘object of intrinsic moral worth' has already been noted, and is particularly well exemplified in discussions concerning an animal’s ability to experience pain, where the relationship is so close that any denial that animals can feel pain is considered tantamount to a denial of the existence of moral obligations to animals. If these questions are conflated then the status of pain judgements - i.e. whether they are scientific or ethical propositions or some admixture of both - is itself unclear. In an attempt to separate out the scientific issues from the ethical, I wish to categorise arguments on the ability of animals to feel pain as either ‘fact driven’ or ‘value driven’. The argument is ‘fact driven’ when it is a scientifically based investigation of the brain and general physiology of an animal, in an attempt to directly establish the existence of pain. In contrast, it is ‘value driven’ when in establishing the ability of animals to experience pain any reliance is placed on animals being objects of moral worth; in such cases ‘pain judgements’ are being derived indirectly from a prior value judgement.

I wish to argue, echoing Dennett, that all ‘pain judgements’ are value driven, i.e. that they are never amenable to a purely scientific determination. Once the ‘fact driven’ arguments are shown to be inconclusive, then this contention is established by default.

‘Fact driven’ arguments.

A review of a recent study on pain suggests that “[Pain’s] near-universality suggests that it must be a basic neurological phenomenon, yet it is still possible to argue about whether pain is felt by non-human organisms, and if so by which of them.” [liv] Many have suggested that pain is necessarily a cortical activity, but even this is in doubt. Dr Vivette Glover, the director of the Foetal and Neonatal Stress Research Centre at Queen Charlotte's and Chelsea Hospital, has pointed out that:

"Frogs and fish do not have a cerebral cortex, yet most people would say that they could not be sure that frogs ... and fish don't feel anything.” [lv]

A recent study[lvi] on the hunting of deer which attempted to determine whether the deer felt pain was so heavily criticised that it is being withdrawn; this particular study also seems to have equated bodily stress with pain, bodily stress being scientifically a more manageable concept. Other studies have also had difficulty in finding a scientific correlate of pain; in one study[lvii] those with the ‘greatest rise in the stress hormone cortisol in their saliva’ were considered to be in the greatest pain.

These examples are eloquent testimony to the difficulty of fully incorporating the concept of animal pain into a scientific theory. Indeed, it is arguable that it is theoretically impossible because the concept of pain - like consciousness - is itself not amenable to a scientific investigation; some physical correlate is required - whether stress level, or whatever - and whereas scientific results can be generated for the correlate, the correlation itself can never be immune from challenge.[lviii] This is particularly so if the ability to communicate is either non-existent (as in the case of animals) or is permanently lost (as in the case of PVS patients).

‘Value driven’ arguments

Descartes attempted to justify the proposition that animals cannot feel pain on the grounds that they were just machines. Though this has the initial appearance of being a factual or scientific proposition, it is not so. It rests on a distinction, crucial to Descartes, between the value of animals and that of humans - humans have language and reason (or, more concisely, ‘souls’), animals have not. There is no demonstration[lix] that ‘animals are machines’, nor are any arguments offered - as later considered by Dennett - that ‘machines cannot feel pain.’ [lx] If Descartes’ argument was implicitly theological, others have offered a more explicit theological justification, suggesting, for example, that since all suffering is a consequence of Adam’s sin and since animals are not descended from Adam they cannot feel pain.[lxi]

Returning again to the relationship/identity between ‘ability to feel pain’ and being an ‘object of moral worth’, Descartes and the Church theologians considered that the absence of ‘souls’ in animals logically implied humans owed no moral obligations to animals - that animals were not ‘moral objects’ - and the proposition that animals could not feel pain was by way a logical inference from this. Bentham sought to reverse the implication by suggesting that:

“The question is not, Can they reason? nor Can they talk? but Can they suffer? [lxii]

He sought to derive the moral worth of animals by a logical inference from the ‘fact’ of animal suffering.[lxiii] But is it a ‘fact’ that animals an experience pain?

Do animals feel pain?

Singer, in an attempt to establish that animals do feel pain, noted the similarity of the behaviour, and of the nervous system, of animals and humans. However, this of itself, was obviously not conclusive and he was forced to fall back on arguments such as:

“The overwhelming majority of scientists who have addressed themselves to this question agree ...” [lxiv]

Marian Stamp Dawkins has attempted a more rigorous approach. Her aim is to unravel the ‘bowl of spaghetti-like reasoning’ that is normally used as an ethical basis for the treatment of animals.[lxv] She has suggested that an animal can be said:

“... [to be] suffering if it is being kept in conditions that it would work hard to get out of, if given the chance.”

This definition creates its own difficulties. Consider a minute organism endowed with negative phototaxis i.e. which avoids light.[lxvi] If we place such an organism close to a light it will tend to move away from it - can we say of such an organism that it suffers? Consider another example; there is no conceptual difficulty in designing a robot,[lxvii] susceptible to damage by heat, which would be programmed to avoid heat whenever possible. Could we say of such a robot that it suffers? Dennett tried to confront this question directly in his essay ‘Why you can’t make a computer that feels pain’. His conclusion was that our concept of pain is inextricably linked with moral considerations; robots to us, are not worthy of moral consideration and thus cannot feel pain.

Animal pain - some implications for PVS patients

This discussion on animal pain has shown that ‘pain judgements’ cannot be fully separated from judgements of moral worth. The moral worth - or ‘personhood’ - of PVS patients is considered in a subsequent chapter where it is defined in such a way as to uncouple the link between the personhood of PVS patients and their ability to feel pain. It is then possible to consider a PVS patient as being able to experience pain without this in any way determining the personhood of the PVS patient. This would thus overcome - what I have already suggested as - the reason for the resistance of medical profession to treating PVS patient as being able to experience pain, namely, that to do so would be tantamount to a determination of their personhood, and would imply that PVS patients were persons with the same rights to treatment and care as other persons - a situation difficult to justify in times of scarce resources.

The ability of newborn infants to experience pain

A recent editorial in The New Scientist noted that:

“Until the 1980s, surgeons operated on newborn babies without giving them opiate-like painkillers, believing that these were not necessary.” [lxviii]

Dr John Wyatt, a consultant neonatal paediatrician, commenting on the findings of the Rawlinson Commission on foetal ability to experience pain has said - in a passage which is redolent of current attitudes to PVS patients - that:

“Until 10 years ago it was widely believed by scientists and clinicians that newborn babies were incapable of feeling pain. The obvious physiological reactions that babies demonstrated to invasive procedures, such as crying and grimacing, were thought to represent reflex responses. It was common medical practice to perform major surgery with drugs that ensured that the baby couldn’t move but gave little or no pain relief.” [lxix]

But confusion did not cease ten years ago, it is still evident. The “The Multi-Society Task Force on PVS”, for example, state:

“Newborns may have the potential to experience pain and suffering. Infants over several months of age are consciously aware and capable of suffering.” [lxx]

This clearly indicates the existence of doubts on the ability of newborns to feel pain, doubts which are not shared by the President’s Commission:

“Thus infants whose lives are destined to be brief are owed whatever relief from suffering and enhancement of life can be provided, including feeding, medication for pain, and sedation, as appropriate.” [lxxi]

Differences in current practice[lxxii] with regard to the need to anaesthetise male infants prior to circumcision is also a manifestation of the confusion in this area. The confusion is not restricted just to the pain receptivity of newborn infants but extends also to considerably later stages in the infant’s development. For example, Stuart Derbyshire, a research fellow in the Department of Rheumatology at Hope Hospital in Salford, argues that conscious experience depends on social interaction and self-awareness, and that it is only well after birth that the awareness of pain develops as a ‘consequence of self-observation and efforts to articulate and cope with emotion provoking situations’. He states further that:

“Whether the cortex does or does not light up is neither here nor there ... the ability to feel pain flows not just from circuits of neurones in the brain ... [but] from the impact of memories and life events on those brain circuits. In short, a foetus cannot feel because it has no experience of life.” [lxxiii]

The distinctions, discussed earlier, between the ‘experience of pain’, the ‘concept of pain’ and ‘suffering’ could have been profitably used by Derbyshire!

Foetal pain

In view of such differing opinions on the pain receptivity of newborns, it is not surprising that the situation with regard to foetal pain is even more confused.

The Royal College of Obstetricians and Gynaecologists, acknowledging the scientific evidence that the development of the nervous system - which, they argue, might enable a foetus to feel pain - begins at around 26 weeks, recently[lxxiv] issued guidelines on the use of painkillers when carrying out procedures involving the foetus. The British Medical Association welcomed[lxxv] the guidelines, saying that even if there was no incontrovertible evidence that foetuses feel pain, they ‘may help to relieve the anxiety of the parents and health professionals’. At present the UK Medical Research Council is reviewing the current state of knowledge of foetal awareness; its ‘Foetal Pain Expert Group’ is expected to report early in 2001.[lxxvi]

However, a new study by Professor Nicholas Fisk and Dr Glover, as yet unpublished, is expected to urge a lowering of this threshold. Dr Glover says:

"It is overstated to say there is no possibility of foetal sentience before 26 weeks. We know too little about the physiological basis of consciousness, about the anatomical development of the foetus, and about what is functioning when ... We cannot measure pain in the foetus. All we can do is guess. My best guess is that the foetus may feel pain from 20 weeks, and may feel something from 17 weeks." [lxxvii]

But Neil McIntosh - Professor of Child Life and Health at the neonatal unit of the University of Edinburgh and who sat on the Royal College of Gynaecologists Working Party - says:

"The evidence suggests that until 26 weeks the connections between the lower brain and the cortex,[lxxviii] which we like to think of as the mammalian seat of consciousness and sentience, do not occur. There is a difference between having a response to pain and feeling pain." [lxxix]

This shows yet again the need for distinguishing between having ‘pain’ and having ‘pain and knowing it as ‘pain”!

Infant and foetal pain - some implications for PVS patients

These developments are of interest to the treatment of PVS patients because:

(i) they explicitly endorse the principle that, in case of doubt as to whether pain is being experienced, carers should anaesthetise.[lxxx]

(ii) the reasons given[lxxxi] by many of those who oppose the treating of foetuses as being receptive to pain is further evidence of the suggested link between ‘pain judgements’ and judgements as to personhood.

(iii) they highlight the incongruity between the treatment of PVS patient and foetuses in respect of pain - the possibility that foetuses may experience pain is now being tentatively accepted unlike the situation in regard to PVS patients.

An article by Michael McQuillan,[lxxxii] Professor of Neurology in Georgetown University, is of particular interest in relation to this last point as he explicitly asks why uncertainty can be acknowledged in one situation, but not the other.

In speaking of infant pain, he expresses surprise that some hold:

“... so firmly to the view that infants do not experience pain that surgery would be performed without anaesthesia.” [lxxxiii]

He considers that observations both of cardiovascular changes and of facial expressions - by using a system of coding facial expression of infants - permits the drawing of valid inferences on the perception of pain by infants. He then poses the rhetorical question:

“If such measures are accepted as evidence that pain perception is present in a normal neonate, can they be rejected in the neonate born without a brain (the infant with anencephaly[lxxxiv]) or in the adult in a ‘persistent vegetative state’ ? [lxxxv]

McQuillan concludes:

“Although by definition the unconscious patient cannot tell you that he perceives pain, available data suggest that he may; therefore you cannot know that he doesn’t.” [lxxxvi]

This conclusion, he notes, has prompted some to recommend talking to comatose patients. This is in agreement with one of the conclusions of this thesis, namely that PVS patients should always be treated as if [lxxxvii] they were conscious.

Pain under anaesthesia

Whilst the uncertainty of pain judgements may be understandable in relation to animals and the newborn, it is less clear how such uncertainty could exist in relation to normal adults during anaesthesia. Surely, we feel, these questions are easily resolvable.

Dennett’s answers by considering[lxxxviii] the example of the drug ‘curare’ and its use as an anaesthetic. Curare was a poison used by South American Indians into which they dipped their blow-pipe darts and which paralysed their enemies. Its active ingredient was isolated and introduced into medical research in the 1930’s and some doctors began to use it as a general anaesthetic in major surgery. It is, in fact, a paralytic that produces total paralysis and limpness of all the voluntary muscles but which has no anaesthetising properties. Dennett takes up the story:

‘The patients were, of course, quiet under the knife and made not the slightest frown, twitch or moan, but when the effects of the curare wore off, complained bitterly of having been completely conscious and in excruciating pain, feeling every scalpel stroke and simply paralysed and unable to convey their distress. The doctors did not believe them.” [lxxxix]

Eventually a doctor submitted himself as a subject and convinced his colleagues that curare had no anaesthetic properties.

Lest it be thought that such anaesthetic ‘mistakes’ belong only to a bygone era, Dennett recounts[xc] the current practice of giving amnesiacs in addition to anaesthetics so that even if anaesthetic is not fully effective the patient will not remember the pain. Furthermore, there have recently been numerous media reports of studies (I have not had the opportunity to consult the originals) on deficiencies in anaesthetic practices:

(i) a report[xci] from the Institute for Anaesthesiology in Munich that patients are, in about 1% of operations, to some degree aware. Of those who were aware, 17% were in severe pain and 73% recalled their surgeons conversations. This latter phenomenon was also the topic of a paper recently presented to the British Association for the Advancement of Science Studies[xcii] which examined reports of patients being able to recall remarks made in their presence whilst they were supposedly anaesthetised.

(ii) a report[xciii] from Johns Hopkins University which estimates that no more than four patients in every 10,000 are conscious during anaesthesia.

(iii) an observation by Dr. Tom Stuttaford the medical correspondent of The Times, that the anaesthetising properties a barbiturate/muscle mixture - similar to that used in carrying out executions in the US - are limited in their effect:

“Barbiturates/muscle relaxants act as anaesthetic, but many a patient, when anaesthetised, although still and incapable of communication, is conscious of what is going on. A suicidal person may appear asleep, but be aware of a suffocating inability to breathe.” [xciv]

Anaesthesia - some implications for PVS patients

The ‘Multi-Society Task Force on PVS’ argued that PVS patients lack awareness because they evinced low metabolic rates:

“... comparable to those reported during deep general anesthesia in normal subjects whom all would agree are unaware and insensate.” [xcv]

In view of the difficulties just enumerated this argument is less than compelling!

Conclusions

The general conclusions that I wish to draw from this section are:

Conclusion _{3 -7} : ‘Pain’ is not open to a purely scientific analysis. At best, correlates of pain can be studied but the validity of the correlation is not fully amenable to a scientific determination. This is particularly so when the ability to communicate is either non-existent (as in the case of animals) or is permanently lost (as in the case of PVS patients).

This conclusion reinforces the earlier Conclusion _{3 - 5} .

Conclusion _{3 -8} : Experience has shown that unanimity of medical opinion on the impossibility of pain being experienced is no guarantee of truth. Thus, the current near-unanimity of medical opinion that PVS patients cannot experience pain should not be regarded as decisive.

It may be urged that medical science has now progressed to such an extent that errors such as have been described, could no longer occur. This belies the lesson of history which is that each medical generation has believed in ‘certainties’ which succeeding generations have unmasked. Surely the correct lesson is that future medical generations will regard the currently accepted ‘certainties’ with the same tolerant bemusement which we accord to the theories of yesteryear.

Section 4: Wittgenstein: a philosophical approach to pain judgements.

Wittgenstein believed that the origin of many philosophical problems lay in language,[xcvi] either in its misuse - through inattentiveness to subtleties of meaning - or in being bewitched by its form.[xcvii] His remedy was to sift the various connotations of terms, identify shades of meaning, excavate problems - much as an archaeologist might explore ruins - so that foundations, hitherto unsuspected, might be uncovered and scrutinised in the cool light of day. He believed that:

“... some of the greatest achievements in philosophy could only be compared with taking up some books which seemed to belong together, and putting them on different shelves; nothing more final about their positions that that they no longer lie side by side.” [xcviii]

His goal was not that the problem would, in a traditional sense, be solved but that it would ‘disappear’, as when, for example, a problem was eventually seen as originating in an assumption that the existence of a grammatical similarity between certain propositions, mirrored a deeper, structural, unity. His belief was that once the inappropriateness of the assumptions implicit in our use of language was made patent, a philosophical problem dissolved and ‘the fly was let out of the bottle.’ [xcix]

Pain judgements play an important role in Wittgenstein’s philosophy. There are many occasions in his writings, particularly when discussing the ‘Private Language Argument’,[c] where their status is analysed. This is because pain judgements straddle the boundary between the observable and ‘the mental’, a region which has generated many philosophical problems. Also the confusion generated by the assumption that similar grammatical structures mirror a deeper ‘reality’, is particularly evident in discussing ‘pain judgements’. Consider, for example, the propositions:

P₁ - ‘I have a pain.’

P₂ - ‘I have a hand.’

P₃ - ‘John has a pain.’

These all have the same grammatical structure - ‘X has a Y’ - yet Wittgenstein denied that ‘I have a pain’ is an instance of ‘X has a pain’ although ‘John has a pain’ undoubtedly is.[ci] This implies that P₁ and P₃ do not share the same deeper structure. Wittgenstein also argued that P₁ and P₂ have only superficial similarities; he suggested that, unlike the statement ‘I have a hand’ - where before making the assertion I can examine my hand and assure myself that I do indeed have one - ‘I have a pain’ is not the result of any such examination. Wittgenstein regarded the statement ‘I have a pain’ as more an avowal - like a cry - than a proposition. Thus I could not doubt my being in pain, nor could I say that ‘I know that I am in pain’[cii] no more than in saying ‘ouch’, I could doubt, or know, ‘ouch’. Because P₁ and P₃ share only a superficial structure, it is necessary, when discussing Wittgenstein’s analysis, to distinguish between ‘I^st person pain judgements’ (pain judgements made by a person about themselves) and ‘3^rd person pain judgements’ (pain judgements made by a person about another). But before considering these differing pain judgements it is first necessary to consider some other aspects of Wittgenstein’s concept of pain.

Some aspects of Wittgenstein’s concept of pain

Wittgenstein’s concept of ‘pain’ is neither solely an ‘inner’, nor solely an ‘outer’ phenomenon but straddles both perspectives. In this it resembles Strawson’s concept of ‘person’[ciii] but differs from, for example, Descartes’ which is based solely on an ‘inner’ investigation.[civ] Other philosophers have sought to base the concept of person solely on an ‘outer’ investigation - by considering, for example, external behaviour or brain development. Strawson, however, insists that both dimensions - the inner and the outer - are vital to a definition of personhood. Similarly Wittgenstein, in his discussion of pain, denies that it is a purely inner phenomenon - i.e. that it is a purely private sensation known only to its ‘subject’ - and denies that pain is a purely external phenomenon to be fully captured by external behaviour; he insists that it shares aspects of both. Because of this complexity, it is useful in examining Wittgenstein’s concept of pain, to do so from a number of different directions. The polarity inner/outer is first adopted and the ‘inner’ perspective on pain is contrasted with the ‘outer’; then a I^st person /3^rd person polarity is adopted and I^st person pain judgements are contrasted with 3^rd person pain judgements.

Wittgenstein‘s concept of pain - the ‘inner/outer’ polarity

Pain - not solely an inner phenomenon

Wittgenstein, in asking the question as to how a person learns the names of sensations, or pains, is led to enunciate his ‘Private Language Argument’. This argument - by considering the impossibility of determining whether a sensation which one now has, was the same as a previous sensation, which one had named ‘S’ - seeks to show the impossibility of either sensations (such as pain) or of their naming, being inherently private. Wittgenstein’s conclusion is that ‘pain’ is not a name privately assigned to a sensation privately discovered but a tool whose meaning is given through social interaction; the idea of pain as being a private entity, is a ‘grammatical fiction’.[cv]

A comparison of the proposition ‘I am in pain’ with the proposition ‘I promise to do X’ is instructive.[cvi] If one too readily allows a distinction between my saying to someone ‘I promise to do X’ and my state of inner assent, so that only I can know with certainty my inner state (the statement ‘I promise to do X’ being a report of this) then the very meaning of ‘to promise someone’ is undermined. Equally, to refuse to make the distinction excludes the possibility that I am lying. The conclusion to be drawn is that the concept ‘promise’ has necessarily a public component and that the phrase ‘I promise to do X’ is best construed as an utterance (i.e. more as a constituent of a public performance which is integral to the concept of promise) than as a proposition (i.e. a report of some inner happening). Similar considerations apply to a purported distinction between ‘anger’ and ‘anger-behaviour’.[cvii]

A corollary of this analysis is that ‘pain’ necessarily[cviii] has a public component; though this is not to deny that, on occasions, pain manifestations may be suppressed.

Pain - not solely an outer phenomenon

It has been suggested that Wittgenstein was a behaviourist[cix] but, whilst there are aspects of his thought that can be accommodated within behaviourism, some aspects cannot. For example, Wittgenstein’s contentions that:

(i) it does not make sense for me to attempt to verify the proposition ‘I am sad’ by an examination of my behaviour;[cx]

(ii) that I can imitate being sad;

(iii) that the term ‘behaviour’ is not restricted to facial expressions and gestures but also includes what people say;

all militate against interpreting Wittgenstein’s philosophy as being purely behaviourist. However, these caveats all relate to ‘I^st person pain judgements’; it seems that, with regard to ‘3^rd person pain judgements’, the contention that Wittgenstein was a behaviourist is more easily defended, though even here qualification may be required.[cxi]

Wittgenstein‘s concept of pain - the ‘I^st person/3^rd person’ polarity

I^st person ‘pain judgements’

The relevance of behaviour

Wittgenstein’s position is that the statement ‘I am in pain’ cannot be doubted by me nor known by me although I may well be lying. To say ‘I am in pain’ is a more sophisticated expression of, and essentially akin to, a child’s scream of pain. Furthermore my behaviour is not relevant to my stating ‘I am in pain’ - in the sense that I do not verify my behaviour before making the statement. However, if I am precluded from manifesting all behaviour, this may need qualification; Wittgenstein had speculated on whether it was possible to imagine being in pain and yet utterly immobile - ‘turned to stone’; this thought experiment will be considered below.

The relevance of language.

Singer has suggested[cxii] that Wittgenstein considered the ability to use language as crucial to the ability to experience pain. This misrepresented Wittgenstein’s position as can be seen by considering his explanation of how a child learns the word ‘pain’ - i.e. that he learns to utter the word ‘pain’ as an alternative form of behaviour to, for example, crying. To suggest that language use was necessary to pain experience would imply that when the infant was crying - prior to learning the word pain - he was not, in fact, in pain!

Wittgenstein’s position is that language use, though not necessary for experiencing ‘anger’ and ‘pain’,[cxiii] is necessary for expressing some psychological states such as ‘hope’.

3^rd person ‘pain judgements’

It has been suggested[cxiv] that Wittgenstein’s treatment of ascriptions of psychological concepts to third persons, is straightforwardly behaviourist; and that to ascribe mental phenomenon to others is logically connected[cxv] with behaviour. I suggest that this is an oversimplification, and that in asking the question “Is X in pain?” there are, in fact, two questions and these need to be distinguished. These questions are:

(i) ”Is X a suitable candidate for a pain judgement?” - i.e. does he belong to the class to whom pain is (normally) ascribed?

(ii) “If X is a suitable candidate, is X in pain?

Wittgenstein had posed a particular ‘thought experiment’, which is helpful in the attempting to elucidate these questions; he had asked:

“Couldn’t I imagine having frightful pains and turning to stone while they lasted?”[cxvi]

This question is of interest because it seeks to clarify whether it is possible to imagine pain existing in the absence of all behavioural expression.

Wittgenstein’s stone experiment: Pain in the absence of all behavioural expression

Norman Malcolm examines Wittgenstein’s thought experiment in his essay ‘Turning to Stone’.[cxvii] He regards it as a convenient device for totally eliminating any human behaviour from the discussion of pain. Wittgenstein used the first person singular in describing his experiment - i.e. he adopted the perspective of the person metamorphosed into stone, and not that of an observer of the stone; Malcolm considers this to be significant:

“The fantasy of turning to stone can get a solid grip on one’s imagination only if it is presented in the first person singular.” [cxviii]

And the reason is that:

“... I don’t employ any criteria in my own case.” [cxix]

When viewed as a ‘1^st person problem’ there appears to be no difficulty in ascribing pains to the stone:

“If another person ... touched my body he would perceive that it had the hardness and coldness of stone. He would think that I had lost sensation and consciousness: but he would be wrong!” [cxx]

The experiment can, however, also be considered as a ‘3^rd person problem’. It can be approached from the perspective of an imagined observer of the stone who might ask ‘Can’t I conceive that this man I see lying here in frightful pain should turn to stone, and his pain continue?’ To this question, Malcolm responds:

“It would be difficult to take this supposition seriously. Why? Because we would realise that our normal criteria for attributing either pain or the absence of pain to another person would not be applicable to a stone figure.” [cxxi]

Wittgenstein is even more forthright:

“Only of what behaves like a human being can one say that it has pains. For one has to say it of a body, or, if you like of a soul which some body has. ... Look at a stone and imagine it having sensations. One says to oneself: How could one so much as get the idea of ascribing a sensation to a thing? One might as well ascribe it to a number! - And now look at a wriggling fly and at once these difficulties vanish and pain seems able to get a foothold here, where before everything was, so to speak too smooth for it. And so, too, a corpse seems to us quite inaccessible to pain. - Our attitude to what is alive and to what is dead, is not the same. All our reactions are different. - If anyone says: ‘That cannot simply come from the fact that a living thing moves about in such-and-such a way and a dead one not,’ then I want to intimate to him that this is a case of transition ‘from quantity to quality’.” [cxxii]

It might appear that the conclusion to be drawn from the stone experiment is that:

‘Though 1^st person pain judgements can be made in the absence of all behavioural expression, 3^rd person pain judgements cannot.’

Indeed this seems to be the conclusion drawn by Malcolm.[cxxiii] Wittgenstein analysis is more subtle; he resolves the problem not in terms of behaviour - but firstly in terms of the possibility of empathy - i.e. possible in respect of a fly but not in respect of a stone; and only then in terms of the behaviour - the wriggling fly.

I suggest that, of these, the possibility of empathy is primary and indeed in certain cases determinative. To see that this is so, recollect Dennett’s discussion of curare.[cxxiv] A doctor had been told by his patients that they had been in pain during surgery though they had been ‘anaesthetised’ with curare. His medical colleagues dismissed the possibility of pain; but he had begun to believe the patients’ reports and decided to submit himself to the procedure The patient, during surgery, was utterly immobile and thus exhibited no behaviour. Was not that doctor (and subsequently his colleagues) capable of ascribing pain in the absence of all behaviour? Indeed, not only in the absence of all behaviour but in the absence of all action[cxxv] on the part of the patient. This example shows that behaviour, and indeed action, is not a necessary condition for the ascription of pain.

Let us try to draw some conclusions on the relationship between pain and behaviour in respect of third party pain judgements. This relationship is often perceived as being a choice between saying that pain judgements are logically connected with the exhibition of pain behaviour or that the connection is contingent. The choice that is offered is between:

(i) 3^rd party pain judgements are logically connected with the exhibition of pain behaviour, where this is interpreted as meaning that pain cannot be ascribed in the absence of pain behaviour. And

(ii) There is no logical connection between pain judgements and pain behaviour, so that in no case are we bound to infer pain from behaviour or conversely absence of pain from lack of behaviour. Pain and pain behaviour often do occur together but there is no reason why they must. Kenny describes this view in the words:

“Pain and its expression seem no more essentially connected than redness and sweetness: sometimes what is red is sweet, and sometimes not.” [cxxvi]

This is an illusory dilemma and it was Wittgenstein’s main contribution to this debate to point out that this is so. There is a third position, which is best described by saying:

(i) 3^rd party pain judgements are necessarily connected with the exhibition of pain behaviour in the vast majority of cases. This is logical connection between the concepts not a contingent connection[cxxvii] for if the connection was contingent then it would be possible to imagine circumstance where the connection was absent in the generality of cases; but this - as argued by Wittgenstein - would imply that the concepts of ‘pain’ and ‘pain judgements’ were incoherent.

(ii) Because the requirement only relates to the vast majority of cases; this implies that neither concept can be reduced to the other. It cannot be asserted that pain behaviour is a sufficient condition for the ascription of pain - for to do so is to ignore the fact that pain behaviour can be a pretence;[cxxviii] neither is it a necessary condition - for to do so is to ignore, for example, the patient paralysed by curare. Thus pain can be ascribed in the absence of behaviour.

____________

Let us now resume the earlier discussion which suggested that the question ‘Is X in pain?’ consisted of two questions

(i) ”Is X a suitable candidate for a pain judgement?” - i.e. does he belong to the class to whom pain is (normally) ascribed?

(ii) “If X is a suitable candidate, is X in pain?”

It is convenient to examine these questions separately.

”Is X a suitable candidate for a pain judgement?”

Dennett, in considering whether a robot could feel pain, was led to conclude that pain was not a purely empirical concept but embodied ideas of value, and that since a robot was, to us, not an object of moral value it could not be said to be in pain. Wittgenstein is lead to a similar conclusion which is that to say of a machine that it thinks, or is in pain, is a category mistake.[cxxix] He argues that the question of whether ‘X is thinking’ or ‘X is in pain’ is not solely an empirical question.[cxxx] In Part 2 of the Philosophical Investigations he goes further, and says:

“I believe that he is suffering ... [implies that] my attitude towards him is an attitude towards a soul ... [and] the human body is the best picture of the human soul.” [cxxxi]

Robert Fogelin expresses the underlying idea by saying:

“... my ascription of a pain to another expresses my feelings towards him: my pity or sympathy” [cxxxii]

so that a capacity to engender empathy is a necessary condition for pain ascription. I suggest that this condition is the key to ‘dissolving’ some of the difficulties associated with the making of ‘pain judgements’ in relation to PVS patients. I suggest furthermore that this is what is meant by saying that an individual possesses consciousness.[cxxxiii] The importance of acknowledging this equivalence is that consciousness - as we have seen in Chapter 1 - wears the mask of being a scientific concept and carries the suggestion that its ascription is open to experimental verification;[cxxxiv] ‘capacity to engender empathy’ has no such pretensions.

Conclusion _{3 -9} :The question ‘Is X in pain?’ consists of, in fact, two questions:

(i) ”Is X a suitable candidate for a pain judgement?” - i.e. does he belong to the class to whom pain is (normally) ascribed?

(ii) “If X is a suitable candidate, is X in pain?”

Conclusion _{3 -10} : A candidate for a pain judgement is an appropriate candidate if it has the capacity to engender empathy, or, equivalently, if it possesses consciousness. The term ‘capacity to engender empathy’ is to be preferred in that it - unlike the term ‘consciousness’ - lays no claim to a spurious scientific rigour.

These conclusions are perhaps sufficiently contentious to require the citing of further authority: Rush Rhees, for example, says:

“When I say the dog is in pain I am not describing what the dog is doing, any more than I describe what I am doing when I give expression to pain. It is more like an expression of pity. At any rate, feeling pity, trying to ease him and so on - or perhaps turning away from the sight - is all part of believing that he is in pain. And to say that I was obviously justified in that - or maybe that I was mistaken - is a different sort of thing from saying that I was justified or mistaken in believing that he had a fracture.” [cxxxv]

Let us now turn to the second question:

“If X is a suitable candidate, is X in pain?”

It was suggested earlier that Wittgenstein‘s argument implied that since PVS patients manifest pain-behaviour[cxxxvi] they must be regarded as being in pain. This conclusion could be avoided by attempting to make a distinction between ‘real-‘pain behaviour” and ‘pseudo-‘pain behaviour” (i.e. as manifested in PVS patients).[cxxxvii] But there is an obligation on one who suggests such a distinction, to produce adequate criteria. To simply assert that:

‘pseudo-‘pain behaviour” = pain behaviour as manifested by PVS patients

is a logical sleight of hand which seeks to overcome a factual ignorance by means of a definition.[cxxxviii] J. L. Austin’s admonition is apposite:

“... we make a distinction between ‘a real x’ and ‘not a real x’ only if there is a way of telling the difference between what is a real x and what is not. A distinction which we are not in fact able to draw is - to put it politely - not worth making.” [cxxxix]

How then could such a distinction be made?

A possible distinction between ‘real-‘pain behaviour” and ‘pseudo-‘pain behaviour”

Passmore summarises the argument for the distinction between ‘behaviour’ and ‘pseudo -behaviour‘ or, more simply, ‘actions’ as follows:

“... there is a distinction between motions of the body, such as the knee reflex, and activities of the person, or ‘behaviour’. Behaviour can never be defined in terms of movements of the body, since the very same set of movements can be present in quite different kinds of behaviour. ... The physiologist can explain the motions of a body in terms of causes, but he cannot explain human behaviour. Indeed behaviour has no causes.” [cxl]

It is clear that the concept ‘behaviour’ is not a purely scientific concept; ‘behaviour’ is not simply equivalent to a collection of specific actions; it has additional connotations. Wittgenstein’s distinction between ‘human’ and ‘automaton’ is ploughing the same furrow, and suggests that the distinction between ‘behaviour’ and a ‘set of physically equivalent actions’ is not empirical but is again based on value, on the possibility of empathy, or in having an attitude to that other as towards a ‘soul’. Imagine a human body writhing and grimacing; the observer - seeing the body as human (i.e. a ‘suitable case’ for a pain judgements) - allows the response ‘he is in pain’ to flow naturally. Next, the observer is told that, in reality, the body is a corpse whose muscles were being electrically stimulated to mimic pain behaviour; immediately the response ‘he is in pain’ ceases as being no longer appropriate. Is it inappropriate because it is ‘pseudo pain behaviour’, or because the subject was a corpse? Would it be different if the subject was an actor? This seems mere word play; the important observation is that the judgements, and the reversals of judgement, followed naturally the flow of empathy, and furthermore that this flow of empathy is not a static phenomenon. It is capable of being changed either way. That it is capable of being engendered, is shown by the curare example; that it is capable of being destroyed, is shown by the corpse example. The role of behaviour is simply that ‘appropriate’ behaviour considerably facilitates this initial flow of empathy.

Conclusion _{3 -11} : Ascribing pain to an individual who has been deemed a suitable candidate for such ascription, is greatly facilitated if the behaviour of that individual resembles human pain behaviour; the presence of such behaviour is, however, neither necessary nor sufficient; the determining factor for the ascription of pain is the presence of empathy.

There is a well-nigh irresistible temptation to imagine that we can somehow ‘go behind’ the behaviour of the subject to some ‘true’ experience of pain and thus resolve all doubts. This, to Wittgenstein, is impossible:[cxli]

“... Wittgenstein repeats that in the language game with ‘pain’ there is no comparing of pain with its picture. We are tempted, he says, to say that it is not merely the picture of pain-behaviour which enters into the game but also the picture of pain. That is we feel that in order to use ‘He is in pain’ we need not only a sample of pain-behaviour as a paradigm for comparison with his behaviour, but also a sample of pain for comparison with his pain. ... If I were to construct a table linking pictures with words, in order to help me learn the meaning of ‘pain’, the table would not contain pictures of pain ... linked with ‘pain’: the pictures would have to be pictures of pain-behaviour” [cxlii]

Furthermore, to Wittgenstein, any attempt to appeal to consciousness - or lack of consciousness - is equally futile. Consciousness is a psychological term, to apply it to a third party we must consider only their behaviour and if the patient is manifesting pain-behaviour - and is therefore in pain - they cannot be considered to have lost their consciousness. This is reminiscent of the Dennett argument[cxliii] that any appeal to lack of consciousness was nothing other than a ‘question-begging’ exercise.

Conclusions: Wittgenstein and pain judgements

Wittgenstein’s arguments force a complete reorientation of the discussion on the making of pain judgements; away from what can best be called ‘pseudo-science’ and towards the primacy of the ethical issues i.e. the question of the stance to be adopted to this ‘other’. At first sight this conclusion may seem implausible, but this response is, I suggest, evidence of the extent to which we have become bewitched by mock science and the illusion that pain is a ‘scientific’ concept. It brings to mind Jaspers’ vision of the role of philosophy as one which frees man ‘from scientific superstition, i.e. from false absolutes and pseudo-knowledge.’ [cxliv] A recent example - taken from a documentary on discrimination by the medical services, against Down Syndrome patients - may help clarify the point at issue; in this example the mother of a Down Syndrome child was told by nursing staff that her son needed no pain relief after an operation because ‘Down children don’t feel pain.’ [cxlv] The nurse doubtlessly felt her judgement was well founded and that it could be justified scientifically. It is interesting to note how such pseudo-science is sufficient to prevent the flow of empathy which would naturally result in a judgement that the child was in pain; this is a phenomenon that also occurs in relation to PVS patients.

Wittgenstein’s analysis also provides an elegant resolution of the problem of animal pain. Now the solution is seen to lie not in a search for a scientific determination of whether animals feel pain - for such is a search for a mirage - but in the possibility of empathy existing between the person making the judgement and the animal in question (recognising, of course, that the presence, or absence, of empathy is not a static condition but is subject to being influenced by intellectual argument).

Wittgenstein and PVS patient pain judgements

If we accept that PVS patients manifest a pain-behaviour - such as the grimaces and writhing often commented on in the legal cases - must we conclude that the PVS patients are in pain? Judgements as to lack of consciousness or inability to experience pain, based on examination of brain states are, as we have seen, beside the point because they are necessarily inconclusive.

Hacker interprets Wittgenstein’s position as implying that:

“... to see another writhing and groaning after being injured is to know ‘directly’ that he is in pain, it is not an inference ...” [cxlvi]

Can this be directly translated to pain judgements for PVS patients? I suggest that all depends on the existence of empathy; if it exists then the pain judgements follow - as Hacker describes it - ‘directly’; if empathy does not exist then the pain judgement is blocked.

It has often been noted that the relatives of PVS patients are convinced that the patient is in pain; however, on the medical side there is an even greater conviction that such patients are not in pain; how can these be reconciled? Does the introduction of the concept of ‘empathy’ help in their resolution?

One way to attempt to reconcile the medical and lay perceptions is to seek to draw a distinction between ‘real’ pain behaviour and that manifested by PVS patients. If such a distinction is possible then it could be argued that the lay observers were simply not being sufficiently perceptive, and that what they interpreted as pain behaviour was in fact not so. This is the approach adopted by the ‘Multi Society Task Force’ who state:

“Conscious (i.e. learned) responses to pain differ measurably from the reflexive decorticate or decerebrate postural responses[cxlvii] that usually characterise a persistent vegetative state.” [cxlviii]

Now the complete thrust of Wittgenstein’s argument is that the recognition of ‘pain-behaviour’ does not require any special expertise, it flows naturally from our common humanity. The patient’s doctors have no special competence in this area, indeed the judgements of the patient’s family - in so far as they are more familiar with the patient - should carry greater weight. Whilst, no objection can be made to an analysis of various patterns of behaviour so that a distinction can be drawn between the behaviour manifested by PVS patients - ‘pain_PVS behaviour’ - and by others - ‘pain behaviour’ this brings us nowhere nearer resolving the question of PVS patients pain.

And the role of empathy in reconciling the medical and lay perceptions? To the layman, the observation of the grimaces and writhing of the patient immediately generate empathy; the perception that the PVS patients is in pain follows ‘directly’. To the medical observer - in so far as they accept that the proposition ‘PVS patients lack consciousness’ is a scientifically determined fact - the flow of empathy is necessarily blocked. Once their state of being ‘in thrall’ is broken - as, for example, by showing the inadequacy of the supposed scientific demonstration - then a gap opens up and the flow of empathy can be restored. The crucial point is that pain judgements are not wholly scientific propositions: the precondition for a ‘pain judgements’ is that the subject is an appropriate subject for the ascription of pain - this is a question of attitude[cxlix] and is not open to a scientific determination (a corollary of this is that such judgements cannot be either true or false); once the subject is deemed a fitting subject then criteria for the ascription of pain can be clarified; a judgement that a subject is in pain can then be made and - in so far as it satisfies the criteria - it can be meaningfully asserted to be either true or false.[cl]

Section 5: Academic support for the proposition that PVS patients may experience pain.

I wish to cite three authors in this context: William Ruddick who, in an article entitled ‘Do Doctors Undertreat Pain?’,[cli] argues that doctors have - and are trained to have - a certain ‘blindness’ to pain particularly when it has no diagnostic value; Michael McQuillen who, in an article ‘Can people who are unconscious or in the ‘vegetative state’ perceive pain?’,[clii] directly confronts (and accepts) the possibility that PVS patients can experience pain; and lastly Keith Andrews who, in some remarks in a paper entitled ‘Patients in the persistent vegetative state: problems in their long term management’, also acknowledges the possibility that PVS patients can feel pain.

Ruddick ‘Do Doctors Undertreat Pain?’

Ruddick’s paper does not seek to establish that doctors routinely ignore pain; rather he takes this as an obvious, and accepted, given and seeks to explain it. His explanation is twofold; doctors ‘forget’ patient pain through either:

(i) a ‘psychological ‘forgetting’ of pain’ ,which is primarily self-protective and helps the doctors distance themselves from the pain they often produce. By their attitudes to the patient and their use of language, they discount the pain that a patient may experience, and they rationalise this discounting by various stratagems - ‘patients exaggerate’, ‘they’re cry babies’ or ‘they have regressed to childhood’. Or,

(ii) a ‘conceptual forgetting of pain’. This, he suggests, has it roots in the self-definition of modern medicine as being curative and life-preserving and only incidentally involved in the relief of pain. Doctors are taught to regard pain as a useful symptom for diagnosing disease; they are not to respond to pain by relieving it, but to respond by observing it and exploring it, even at the cost of accentuating the pain.

Ruddick distinguishes a lay concept of pain, where the appropriate response is to attempt to relieve the pain, from a new clinical concept of pain where the appropriate response is to observe that pain. In physicians the lay concept of pain (as a solely private sensation) has been replaced by the clinical concept which supposedly gives them a capacity for sophisticated inferences from outward behaviour. He considers the question as to whether the clinician concept of pain is a more precise concept than the lay concept to be misplaced; they are essentially different concepts calling forth different responses.

Ruddick’s analysis suggests that physicians would tend to ignore pain when it was no longer useful as a diagnostic tool; he gives the examples of terminally ill patients, or those in chronic pain with no discoverable organic cause, being told ‘I’m afraid there is nothing more that we can do for you!’. His analysis also suggests that the pain of a patient, who was unable to communicate their pain, would become clinically ‘nonexistent’. This in turn implies that a physician operating with such a clinical concept of pain would be more likely to discount the possibility of a PVS patient experiencing pain.

McQuillen ‘Can people who are unconscious or in the ‘vegetative state’ perceive pain?’

McQuillen, a neurologist, in discussing the commonly accepted theories of pain concludes that the experiencing of pain is not primarily a cortical activity but is regulated subcortically, and that:

“... pathways sufficient for the perception and modulation of pain need not rise nor descend to levels generally thought necessary for consciousness.” [cliii]

McQuillen speaks of the ‘will-o-the-wisp’ nature of the concept of consciousness and quotes (with approval) Hughlings Jackson:

“... [t]here is no such entity as consciousness; we are from moment to moment differently conscious.” [cliv]

The removal of the dichotomy ‘conscious / unconscious’ - either by using Hughlings Jackson’s perspective, or by regarding ‘consciousness’ as a ‘dimmer-switch’ - allows a more fruitful debate of issues concerning consciousness. However, McQuillen’s article, in common with most medical discussions, suffers from forcing the terms ‘conscious’ and ‘unconscious’ to carry too many shades of meaning whilst simultaneously using them as contrasting terms; and thus leading to semantic paradoxes[clv] which would have been obviated had a more appropriate terminology been used.

McQuillan mentions[clvi] a study on the existence of implicit memory subsequent to anaesthesia; this study found that 70% of patients required no analgesia after major surgery when a series of positive suggestions were read to them at the end of the operation and whilst they were supposedly unconscious. He also notes[clvii] a study of patients who had recovered from coma; this study found that eight of fifteen patients who had recovered consciousness after head injury reported a variety of recollections including that of pain. These results argue strongly that some level of consciousness be attributed to these states.

McQuillen’s observations on infant pain judgements have already been noted[clviii] as has his observation concerning PVS patients:

“If such measures are accepted as evidence that pain perception is present in a normal neonate, can they be rejected in the neonate born without a brain (the infant with anencephaly) or in the adult in a ‘persistent vegetative state’? [clix]

Some comments by Andrews

As can be seen in the following passage, Andrews acknowledges the possibility that a vegetative patient may experience pain:

“Very few patients in the persistent vegetative state are so severely brain damaged that they demonstrate no response, and most respond to pain by either withdrawing or grimacing ... If there is no cortical function then we assume that the patient cannot be aware of the distress. While recognising that a withdrawal response to pain is a basic reflex which has a functional value ... it is more difficult to see how facial grimacing in response to pain stimulation of the leg can have a useful reflex purpose ... "Is it possible that we have given too little thought to a patient’s lower brain functions as part of the person we are caring for? I have seen only one patient in the persistent vegetative state die of starvation (because oesophageal stricture prevented reinsertion of a nasogastric tube) ... She took 3 weeks to die and became more alert, constantly awake, and agitated - presumably due to the release of brain stimulating chemicals in response to hypoglycaemia. It is one thing to state that she could not have felt any distress because she had a damaged cortex, it is another to be fully convinced (and to convince her carers) that there really was no suffering." [clx]

Conclusion _{3 -12} : There is some academic support for the proposition that PVS patients can experience pain.

Section 6: Conclusions: ‘Pain judgements’ and the PVS patient.

* It is necessary to distinguish between ‘the ability to experience pain’ and ‘the ability to experience pain knowing it to be pain’; it then follows that an assertion that an individual lacks the capacity for reflective thought does not imply that they cannot experience pain.

* Secondly, ‘pain’ is primarily an ethical and not a scientific, concept; it is closely allied with the capacity to engender empathy and, in these respects, it resembles the concept of ‘consciousness’.

* Thirdly, the assertion that, because an individual lacks consciousness, he lacks the ability to experience pain, is specious.[clxi]

Some, more specific, conclusions are possible:

(i) A determination that ‘X is in pain’ first requires an answer to the question ‘Is X a suitable individual - i.e. of the right type - for the ascription of pain?’; this question relates, essentially, to the attitude adopted to X’s type - i.e. whether or not empathy could exist towards X.

a) If answered negatively, the discussion is concluded; the question is not a scientific question and is not capable of rational determination.[clxii]

b) If answered positively then the question ‘Is X, in fact, in pain?’ can be asked.

It follows that the existence of empathy to individuals of X’s type is a necessary but not sufficient condition for the ascription of pain to X.

(ii) Assuming that X is of the type to whom pain is normally ascribed, the question as to whether X is, in fact, in pain can be approached in either of two ways: either by clarifying the criteria for the ascription of pain to such an individual and seeing whether they are, in fact, fulfilled; or by attempting to find brain states which correlate with the experience of pain[clxiii] and seeing whether such brain states are, in fact, present in X’s case.

a) The criteria for the ascription of pain to such individuals are normally expressed in term of the overt[clxiv] behaviour; however, the presence of such behaviour is neither necessary nor sufficient for the ascription of pain.

4 It is not sufficient because of the possibility that the behaviour is a pretence (e.g. a child or an actress pretending to feel pain).

4 It is not necessary because an individual may be immobile ( e.g. locked-in syndrome patient) and yet be in pain.

Attempts to distinguish ‘real pain behaviour’ from ‘pseudo pain behaviour’ - with pain behaviour as manifested by PVS patients being suggested as an example of the latter - are inappropriate because they depend on the assumption that the manifestation of pain behaviour is both a necessary, and a sufficient, condition for pain ascription. This assumption is incorrect. The assertion that the pain behaviour manifested by PVS patients is pseudo pain behaviour and that, accordingly, PVS patients do not experience pain is specious.

b) If pain is conceived of as a phenomenon which must be manifested in the brain then - although pain itself is not accessible scientifically - it may be theoretically possible to establish correlations between the activity of certain areas of the brain (called ‘pain centres’) and the experience of pain.

4 To date, no such pain centres have been identified; indeed, doubt has been cast on the very coherence of the concept. The current understanding is that if the concept is to be used, it must be applied to the whole brain, so that only in the absence of all brain activity can it be stated that pain is not being experienced.

4 Because some brain activity is present in PVS patients, the conclusion that PVS patients do not experience pain is not justified.

4 Even if at some future time such pain centres were to be identified, then there are theoretical reasons why such identification could only be applicable to patients who have the ability to communicate; this is because the correlation can only be established for such patients. It may be possible to extend these results to patients who lack the present[clxv] ability to communicate by comparing the theoretical predictions with the patient’s subsequent reports of their experiences; however, because of the difficulty[clxvi] of distinguishing between ‘pain’ and the (true, or false) ‘memory of pain’, such correlation is open to doubt.

In patients - such as PVS patients - who never recover the ability to communicate these difficulties would appear to be theoretically insurmountable particularly because, in cases of brain damage, there can be considerable reorganisation of the functions of the brain. Hence, there does not appear to be even a theoretical possibility of establishing whether PVS patients experience pain.

(iii) Attempts to justify the assertion that ‘PVS patients cannot experience pain’ on scientific grounds - such as a supposed lack of consciousness or results of the examination of brain states or by distinguishing between pseudo pain behaviour and ‘true’ pain behaviour - are not sustainable. The judgement that PVS patients cannot experience pain, springs from adopting the attitude that such patients are not fit subjects for the ascription of pain; pseudo scientific ‘justifications’ for such assertions are of a negative importance in that, if unchallenged, they destroy the possibility of the empathy which naturally arises on observing the behaviour of such patients, being sustained.

(iv) There have been many historical examples where a consensus of medical opinion has existed - supposedly based on scientific grounds - on the inability of some to experience pain, but where this opinion has subsequently been accepted as being erroneous (e.g. the ability of newborn infants to experience pain is now widely accepted); accordingly, the fact that there presently exists a medical consensus that PVS patients cannot experience pain, is no guarantee that such patients cannot experience pain; indeed, there is some evidence that the consensus is weakening.

4 Whilst writing the conclusions to this thesis a recent Editorial in the journal Anaesthesia has come to hand which argues that anaesthesia should be routinely given to patients who are classified as being brainstem dead, when their organs are being removed;[clxvii] this adds considerable weight to the proposal in this thesis that PVS patients should be treated as if they are conscious and can expereince pain.

____________

The conclusions that were established in this Chapter are:

Conclusion _3-1 : The assertion that, in PVS, pain cannot be experienced because consciousness is absent, is specious.

Conclusion _{3 -2} : As yet, no particular areas of the brain have been identified, damage to which, or whose inactivity, is uniquely associated with PVS. Hence, even if areas of the brain were to be identified which were uniquely associated with the experience of pain, no theoretical conclusion could be drawn ruling out the possible excitation of these areas - and, presumably, the experience of pain - in PVS patients.

Conclusion _{3 -3} : Excepting cases where all brain activity is absent, there are no areas, or processes, of the brain that can be uniquely associated with the experience of pain to the extent that the non-activation of these areas, or the absence of these processes, would justify the conclusion that pain is not present.

Conclusion _{3 -4} : In PVS there are no areas, or processes, of the brain that can be uniquely associated with the experience of pain to the extent that the non-activation of these areas, or the absence of these processes, would justify the conclusion that pain is not present.

Conclusion _{3 -5} : The ascription of pain is not amenable to a purely scientific, experimentally verifiable, determination but is intimately connected to whether the subject is deemed to be a suitable candidate for inclusion in a moral calculus (i.e. is an ‘Object of Intrinsic Moral Worth’).

Conclusion _{3 -6} : It is possible to draw a distinction between the ‘pain’, the ‘concept of pain’ and ‘suffering’, and to conclude that, though the possession of reflexive consciousness is a precondition for experiencing pain ‘as pain’ or for suffering, it is not so for the experience of pain itself.

Conclusion _{3 -7} : ‘Pain’ is not open to a purely scientific analysis. At best, correlates of pain can be studied but the validity of the correlation is not fully amenable to a scientific determination. This is particularly so when the ability to communicate is either non-existent (as in the case of animals) or is permanently lost (as in the case of PVS patients).

Conclusion _{3 -8} : Experience has shown that unanimity of medical opinion on the impossibility of pain being experienced is no guarantee of truth. Thus, the current near-unanimity of medical opinion that PVS patients cannot experience pain should not be regarded as decisive.

Conclusion _{3 -9} :The question ‘Is X in pain?’ consists of, in fact, two questions

(i) ”Is X a suitable candidate for a pain judgement?” - i.e. does he belong to the class to whom pain is (normally) ascribed?

(ii) “If X is a suitable candidate, is X in pain?”

Conclusion _{3 -10} : A candidate for a pain judgement is an appropriate candidate if it has the capacity to engender empathy, or, equivalently, if it possesses consciousness. The term ‘capacity to engender empathy’ is to be preferred in that it - unlike the term ‘consciousness’ - lays no claim to a spurious scientific rigour.

Conclusion _{3 -11} : Ascribing pain to an individual who has been deemed a suitable candidate for such ascription, is greatly facilitated if the behaviour of that individual resembles human pain behaviour; the presence of such behaviour is, however, neither necessary nor sufficient; the determining factor for the ascription of pain is the presence of empathy.

Conclusion _{3 -12} : There is some academic support for the proposition that PVS patients can experience pain.

---

[i] By ‘functional criteria’ I mean criteria that can be easily used in a clinical setting.

[ii] i.e. not as an inference from a judgement of either lack of consciousness or of PVS.

[iii] With the exceptions of Borthwick (whose views are discussed in Chapter 4 and are summarised in Appendix B) and McQuillen and, possibly, Andrews (both of whose views are discussed later in this chapter).

[iv] [as quoted in earlier chapters]

The 1996 guidelines issued by the BMA state (at p.58):

"It is widely accepted that PVS patients are unconscious and incapable of suffering mental distress or physical pain although many reflex responses remain."

The Multi-Society Task Force on PVS state (Part 2 at p.1576):

"None of these [i.e. reflexive responses] however, can evoke the experience of pain and suffering if the brain has lost its capacity for self-awareness. The perceptions of pain and suffering are conscious experiences: unconsciousness, by definition, precludes these experiences."

As the President’s Commission categorise PVS under the heading ‘Permanent Loss of Consciousness’ (op.cit. p.180), it is not surprising that the issue of pain was easily resolved:

“If a prognosis of permanent unconsciousness is correct, however, continued treatment cannot confer such benefits [i.e. relief of pain]. Pain and suffering are absent, as are joy, satisfaction ...” [ibid. p.181]

The Institute of Medical Ethics Working Party on the Ethics of Prolonging Life and Assisting Death ‘Withdrawal of life-support from patients in a persistent vegetative state.’ The Lancet (1991) found that:

“Vegetative state patients are not suffering, because the mechanisms for suffering have been destroyed.” [ibid. p.97] and

”We agree with the American view that there is no remaining neurological mechanism to make pain or suffering possible, ...” [ibid.]

[v] [as quoted in earlier chapters]

Sir Stephen Brown P. in the Bland Case stated (at p.795)

"Although Bland’s body breaths and reacts in a reflex manner to painful stimuli it is quite clear that there is no awareness on his part of anything that is taking place around him ... He is fitted with a catheter which has given rise to infection necessitating surgical intervention. It is to be noted that the necessary surgical incision was made without any anaesthetic because Anthony Bland is utterly devoid of feeling of any kind." [emphasis added]

The definition of PVS given by Sir Thomas Bingham, MR, in the Bland case (at p.806):

"P.V.S. is a recognised medical condition quite distinct from other conditions sometimes known as ‘irreversible coma’, ‘the Guillain-Barré syndrome’, ‘the locked-in syndrome’ and ‘brain death’. Its distinguishing characteristics are that the brain stem remains alive and functioning while the cortex of the brain loses its function and activity. Thus the P.V.S. patient continues to breath unaided and his digestion continues to function. But although his eyes are open, he cannot see. He cannot hear. Although capable of reflex movement, particularly in response to painful stimuli, the patient is incapable of voluntary movement and can feel no pain. He cannot taste or smell. He cannot speak or communicate in any way. He has no cognitive function and can thus feel no emotion, whether pleasure or distress." [emphasis added]

was adopted in the Ward Case by Lynch J. in the High Court (at p.2) and by Denham J. in the Supreme Court (at p.447)

[vi] Chapter 1, Section 3.

[vii] As distinct from, say, ‘executable intentional consciousness’.

[viii] Excluding cases where all brain activity has ceased which is not the case in PVS.

[ix] i.e. that a patient has no pain because they have no consciousness.

[x] i.e. the anaesthetists.

[xi] i.e. that a patient has no pain because they have no consciousness.

[xii] Daniel Dennett, ‘Why You Can’t Make A Computer That Feels Pain’ p.212-3; this essay is included in Dennett, Brainstorms to which the page references refer.

[xiii] Part 1 at p.1505.

[xiv] ibid. p.1506:

“Although there are no established correlations between the results of neuroimaging studies and the development of the vegetative state or the potential for recovery, most patients who do not recover consciousness have abnormal scans.”

[xv] ibid. p.1506:

“Although these studies demonstrate substantial reductions in the metabolism of glucose, there is not yet sufficient information to warrant the use of PET scanning to determine prognosis.”

[xvi] ibid. p.1506:

“... measurements of cerebral blood flow immediately after an acute neurologic injury does not predict a vegetative outcome in either adults or children.”

[xvii] Institute of Medical Ethics Working Party on the Ethics of Prolonging Life and Assisting Death ‘Withdrawal of life-support from patients in a persistent vegetative state.’ The Lancet Vol 337 Jan 12, 1991 pp. 96-98.

[xviii] ibid. p.97

[xix] Andrews (1996) at p13.

[xx] Cranford op.cit. p.5.

[xxi] David Concar, [‘Into the Mind Unborn’ New Scientist 19^th October 1996] mentions (at p.44) the use of PET scans to determine which parts of the brain are involved when someone experiences pain:

“When people say the stimulus is not painful you don’t see these emotional areas light up.”

[xxii] Concar [op.cit. at p.45]; he continues:

“Sometimes, the pain they feel is increased on the side that you’d expect would be numb to pain. This could be because the brain reorganises following injury.”

Gregory notes that:

“Transformation of psychological processes as new brain parts arrive at functional maturity confers a plasticity of function so that a child can partly recover from loss of brain tissue by injury or disease.” [op.cit. p.108]

and that:

“In recent years the evidence on pain has moved in the direction of recognising the plasticity and modifiability of events in the central nervous system. Pain is a complex perceptual and affective experience determined by the unique past history of the individual, by the meaning to him of the injurious agent or situation, and by his ‘state of mind’ at the moment, as well as by the sensory nerve patterns evoked by physical stimulation.” [ibid. p.574]

[xxiii] Concar, op.cit. p 45:

“Some neuroscientists believe that the jury is still out on whether cortical activity really is the vital ingredient in pain. Some part of pain could be processed entirely subcortically, ... But it would be difficult to prove.”

Dennett (op.cit. p.199-216) gives a marvellous tour-de-force of the ‘gate theory of pain’. The journey begins at the skin with receptors (the nociceptors) that respond to certain noxious events. Two types of brain fibres travel brain-wards; ‘A-fibres’ believed responsible for ‘stabbing’ pains and enable the localisation of pain, and ‘C-fibres’ believed responsible for non-localised ‘deep’ pains. Both A- and C-fibres meet at the midbrain gateway and output through two channels - one to the lower, phylogenetically older portion of the brain and the other to the neocortex. Dennett describes the feedback mechanisms between these outputs and their complicated onward path and uses this ‘gate theory’ to help explain many of the anomalies associated with the experience of pain such as ‘phantom limb’, and the experience of those under morphine who are aware of feeling intense pain but of not ‘minding it’. In the face of such complexity, ideas of ‘pain centres’ seem unduly simplistic.

Dennett’s goal is to find a theoretical mechanism which will help explain the action of the different drugs used in anaesthesia and analgesia. Using the ‘gate theory’ he is able to do this without recourse to arguing that anaesthetics function by removing consciousness - an ‘explanation’ which he believes to be only a sham.

[xxiv] Gregory op.cit. p.574.

[xxv] ibid. p.575

[xxvi] Quoted in Dennett op.cit. p.219.

[xxvii] Included in Samuel Guttenplan (ed.) A Companion to the Philosophy of Mind pp 452-9.

[xxviii] ibid. p.457.

[xxix] Anthony Campbell, review of Roselyne Ray’s ‘The History of Pain’ in The Journal of Consciousness Studies, (1999) at p.113.

[xxx] Dennett op.cit. p.219.

[xxxi] This may appear unduly extreme yet Dennett instances cases, as does Gregory, of so-called anaesthetics which were in fact amnesiacs - so that rather than preventing pain they stopped the remembering of pain. For example, the drug hyoscine - known as ‘twilight sleep’ - has this effect and had often been given during childbirth (Gregory op.cit. p.24). Dennett recalls being told by a prominent anaesthesiologist “When we think a patient may have been awake during surgery, we give scopolamine to get us of the hook.” Dennett also mentions a pharmacological textbook which uses the phrase ‘obstetrical amnesia or analgesia’ as if amnesia and analgesia were much the same thing. (Dennett op.cit. p.210)

The action of ‘curare’ - which was wrongly believed to be an anaesthetic and which caused total paralysis - is discussed later in this chapter.

[xxxii] Dennett op.cit. p.217.

Gregory (op.cit. p.22-24) also acknowledges the lack of theoretical understanding of anaesthesia and consequently of pain:

“How do anaesthesia work? ... There is no common chemical structure which would suggest a specific action on some part of the brain. Instead ... all share the property of dissolving in fat ... [The] cell membrane across which an electrical potential is maintained consist of fatty molecules ... the anaesthetic ... disorders the membrane ...

But if one asks, ‘On what synapses, or on what cell groups of the brain, is this molecular action particularly exerted? no satisfactory answer exists. ... Detailed analysis yield a bewildering variety of effects ... It is still impossible to move convincingly from the subjective phenomena to physiological understanding ... One must recall that, despite all the advances of neuroanatomy, it is only a tiny minority of nervous pathways that can be precisely and completely described in anatomical and neurochemical detail ...”

[xxxiii] Dennett op.cit. p.225.

[xxxiv] ibid. p.197.

[xxxv] This term ‘Objects of Intrinsic Moral Worth’ (‘OMW’s’ for short) is explained in Chapter 1, footnote 12. The terminology is useful in discussing ‘personhood’ and will be considered further in Part 3.

[xxxvi] His essay was entitled ‘Why you can’t make a computer that feels pain’.

[xxxvii] This example is considered in Section 4.

[xxxviii] Wittgenstein PI-1 § 283-4:

“Only of what behaves like a human being can one say that it has pains. For one has to say it of a body, or, if you like of a soul which some body has. ... Look at a stone and imagine it having sensations ... One might as well ascribe it to a number! - And now look at a wriggling fly and at once these difficulties vanish and pain seems able to get a foothold here, where before everything was, so to speak too smooth for it.“.

[xxxix] This will be discussed in Section 2.

[xl] i.e. that they have lost their ‘personhood’. This concept will be discussed in Chapter 10.

[xli] see The Ward case:

“In the Ward’s case, it is also clear that she never got used to the nasogastric tube. She reacted against it by pulling it out an enormous number of times, probably well over a thousand times and probably also by way of reflex action to an unpleasant stimulus ...” [Lynch, J., High Court p.21]

[xlii] This was Descartes’ view and is discussed later in this section. Some medical practitioners, who argue that a newborn baby cannot feel pain, also rely on this ground as do some who suggest that animals cannot experience pain; these views are examined in Section 3.

[xliii] As argued, I believe, by Piaget.

[xliv] and, a fortiori, that a foetus could not experience pain.

[xlv] By which he meant the capacity to reason conceptually.

[xlvi] Chapter 1, footnote 92.

[xlvii] Williams, Descartes, p.82.

[xlviii] These are cases of children, such as the 19^th century documented example known as the ‘The Wild Boy of Aveyron’ [discussed in Chapter 10] who grow up in the company of animals but in the absence of humans.

[xlix] Singer in his essay ‘Do Animals Feel Pain?’ states:

“There is a hazy line of philosophical thought, deriving perhaps from some doctrines associated with the influential philosopher Ludwig Wittgenstein, which maintains that we cannot meaningfully attribute states of consciousness to beings without language. This position seems to me very implausible. Language may be necessary for abstract thought, at some level anyway; but states like pain are more primitive, and have nothing to do with language... Human infants and young children are unable to use language. Are we to deny that a year-old child can suffer? If not, language cannot be crucial.”

This shows, I believe, a fundamental misunderstanding of Wittgenstein’s views, in particular his ‘Private Language Argument’. The ‘PLA’ is considered in Chapter 10.

[Singer’s article ‘Do Animals Feel Pain?’ is an excerpt from his book Animal Liberation and is available on the internet at http://www.envirolink.org/arrs/index.html]

[l] Alan Watts, Nature, Man & Woman, at p.86.

[li] Charlotte Joko Beck, Everyday Zen, p.191:

“I'd like to draw a distinction between pain and suffering. Pain comes from experiencing life just as it is, with no trimmings. We can even call this direct experiencing joy. But when we try to run away and escape from our experience of pain, we suffer.”

[lii] Though it is difficult to see whether an infant’s fear of abandonment should be classified as being ‘pain’ or ‘suffering’.

[liii] Article by Emma Burns entitled ‘Does a foetus feel pain?’ [The Times 28^th March 2000]:

“Do unborn babies feel pain? If so, from which week? And - horrifying though it may be to imagine such suffering, does it matter in the long term, given that the experience will not be remembered?”

The practice of giving amnesiacs in conjunction with anaesthetics is discussed later in this section.

[liv] Campbell op.cit. p.113.

[lv] Burns op.cit.

[lvi] It has been reported that Patrick Bateson, an authority on animal behaviour at Cambridge University - whose report on the stress suffered by deer whilst being hunted, led to a National Trust ban on stag hunting - has admitted that the validity of his findings needs to tested by further research.

[In an article entitled ‘Staghunt scientist admits his doubts’, The Times, January 24^th 1998].

[lvii] Dr. Glover [as quoted in Burns op.cit.].

[lviii] See the discussion in Chapter 1 (p.37) on the use of eye-movement as a criterion for ‘dreaming’ and the suggestion that this a is tantamount to a redefinition of ‘dreaming’.

[lix] As, for example, one would attempt to demonstrate to one who had never seen, nor heard of, a tape recorder that it was a machine.

[lx] The suggestion that machines might feel pain seems extreme yet it is worth remembering that La Mettrie, a contemporary of Descartes, implicitly accepted this in that he considered humans as just machines.

[lxi] Attributed to Malebranche; see: Internet Encyclopaedia of Philosophy ‘Animal Rights’.

[lxii] Quoted in Singer, A Companion to Ethics at p.348.

[lxiii] Neglecting, for the moment, the distinction between ‘pain’ and ‘suffering’.

[lxiv] see Singer, ‘Do Animals Feel Pain?’

[lxv] Paul Gribble ‘Cognitive Science and Animal Rights’ [internet source]

[lxvi] Gregory op.cit. p.519.

[lxvii] This example was given by Gribble op.cit.

[lxviii] Entitled ’Cool heads in a hot climate’; The New Scientist 19^th October 1996 at p.3

See also Burns op.cit.:

“Until 1985 it was assumed that not merely foetuses but also newborn babies were incapable of feeling pain. Then research emerged showing that newborns given painkillers during surgery were more likely to thrive than those who were not. By 1993 it was accepted that this was because they can and do suffer and should be treated accordingly. Now the focus has switched to foetuses,”

[lxix] Dr John Wyatt, article entitled ‘Foetal Pain’ [The Guardian 23^rd October 1996].

[lxx] Part 2 p.1577 [emphasis added].

[lxxi] President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioural Research. ‘Deciding to Forego Life-Sustaining Treatment’ at p 220.

[lxxii] A study (which I have not consulted) by Gideon Korean in The Lancet; February 28, 1997 discusses the differences in current medical practice.

Burns (op.cit.) also addressed the question of male circumcision:

“Pain suffered at or soon after birth seems to leave its mark. Dr Vivette Glover, the director of the Foetal and Neonatal Stress Research Centre at Queen Charlotte's and Chelsea Hospital, West London, says: "Baby boys circumcised in their first week cried more at their inoculation jabs at four to six months than a control group did, indicating a long-term alteration of their pain response.”

[lxxiii] The Guardian 23^rd October 1996.

[lxxiv] The Irish Times 25^th October 1997.

[lxxv] The Times 25^th October 1997.

[lxxvi] Burns op.cit.

[lxxvii] ibid.

[lxxviii] ibid. Dr Glover had noted (as mentioned earlier) that pain may not be exclusively an activity of the cerebral cortex.

"... frogs and fish do not have a cerebral cortex, yet most people would say that they could not be sure that frogs and fish don't feel anything.”

[lxxix] Burns op.cit.

[lxxx] Chapter 5 examines how doubt should be resolved in medical decision making; it urges the acceptance of such a principle, as does Dr Glover:

"We are all guessing. In my view, we should err ... on the safe side, and treat the foetus as though it does feel things from 20 weeks." (see Burns op.cit. )

[lxxxi] Concar op cit. (p.40):

“One senior pain specialist said ‘Having never spoken to a foetus I can’t say what it feels. But I’m deeply suspicious of the motives of people who ask me.’ History shows he is right to be. Whether foetuses feel pain has always been bitterly contested by opponents and proponents of abortion ...”

[lxxxii] Michael P McQuillen, ‘Can People Who Are Unconscious or in the ‘Vegetative State’ Perceive Pain?” Issues in Law & Medicine (1991). The article is also considered in Section 5.

[lxxxiii] ibid. p.381. See also the Bland case (p.795):

“It is to be noted that the necessary surgical incision was made without anaesthetic because Anthony Bland is utterly devoid of feeling of any kind.”

where it seems, bizarrely, that the non-use of an anaesthetic by the medical carers became - to the legal professionals- proof that pain was absent.

[lxxxiv] Jennett and Plum (1972 at p.736) note, from observations on anencephalic infants, that an appreciable range of activity and responsiveness is possible in the absence of a cortex.

[lxxxv] McQuillen op.cit. p.382.

[lxxxvi] ibid. p.383.

[lxxxvii] ‘as if’ in the sense of ‘not knowing’ rather than in the sense of ‘pretending’. This does not imply (see Chapter 10) that they should always be treated as if they were ‘persons’.

[lxxxviii] Dennett op.cit. p.209.

[lxxxix] ibid. p.209.

[xc] ibid. p.210.

[xci] The Sunday Times 22^nd March 1998, Medical Notes, quoting a report from the British Journal of Anaesthesia.

[xcii] As reported in The Times 16^th August 1999.

[xciii] Hopkins Internet Health report ‘Awake Under Anaesthesia’ April 15^th 1998.

[xciv] ‘Final moments of old friend who 'died on end of needle”- an article concerning Dutch euthanasia practices [The Times 26^th Feb 2000].

[xcv] Part 1 p.1502. McQuillen - offering a view contrary to the ‘Multi-Society Task Force on PVS’ - says:

“Infants, whose cognition can only be inferred by motor movements not unlike those manifested by the patient in the ‘vegetative state,’ have cerebral metabolic rates in excess of healthy adults. This is so in the very regions with regard to which it is inferred, in the ‘vegetative state,’ that cognition is lost because the metabolic rate is low.”

[op.cit. p.375]

[xcvi] Wittgenstein defined philosophy with the phrase:

“Philosophy is a battle against the bewitchment of our intelligence by language.”

[Wittgenstein, PI-1 § 109.]

[xcvii] As in the belief that behind every noun there is an ‘object’.

See also Wittgenstein:

“We fail to get away from the idea that using a sentence involves imagining something for every word.” [PI-1 § 449]

“... reach the conclusion that the sensation itself is a nothing – Not at all. It is not a something, but not a nothing either! ... We have only rejected the grammar which tries to force itself on us here.” [PI-1 § 304]

[xcviii] Wittgenstein, The Blue Book (p.44);quoted in Flew op.cit. p.34.

[xcix] Wittgenstein PI-1 § 309: “What is the aim of your philosophy?- To shew the fly the way out of the fly-bottle.”

[c] The ‘Private Language Argument’ will be discussed in Chapter 10.

[ci] Kenny (1973) p.199.

[cii] Wittgenstein regarded ‘knowing’ as involving a true description of a state of affairs; ‘I am in pain’ is not such a description of a state of affairs rather it is part of the state of affairs - see Kenny (1973) p.201.

[ciii] Strawson’s concept of ‘person’ is discussed in Chapter 10.

[civ] Steiner eloquently describes the Cartesian position:

* “For Descartes, truth is determined and validated by certainty. Certainty, in turn, is located in the ego. The self becomes the hub of reality and relates to the world outside itself an exploratory, necessarily exploitative way. As knower and user, the ego is predator. For Heidegger, on the contrary, the human person and consciousness are not the centre, the assessors of existence. Man is only a privileged listener and respondent to existence.” [op.cit. p.31]

* “It is not in respect of “I am” that we most readily and most assuredly seize on the nature of being (here Heidegger differs fundamentally from the “egoism” of Descartes ...” [ibid. p.51]

[cv] Glock op.cit. p.57.

[cvi] Fogelin op.cit. p.171.

[cvii] In saying:

“We do not laugh because we are happy - we are happy because we laugh.”

William James suggested that the exterior expression of an emotion was the emotion itself. (I am unable to locate the reference for this quotation.)

[cviii] Glock op.cit. p.55.

[cix] ibid. p.55.

“Behaviourism ... holds that attributing mental states, processes or events to people really amounts to making statements about their actual behaviour or disposition to behave.”

Behaviourism has various guises - as the belief that either mental phenomenon do not exist; or, that mentalist terminology should be avoided as not verifiable; or, that propositions which involve such mentalist terminology are semantically equivalent to propositions about behaviour and should be replaced by such.

[cx] ibid. p.56

[cxi] This is discussed below.

[cxii] Singer in his essay ‘Do Animals Feel Pain?’ states:

“There is a hazy line of philosophical thought, deriving perhaps from some doctrines associated with the [ as mentioned philosopher Ludwig Wittgenstein, which maintains that we cannot meaningfully attribute states of consciousness to beings without language. This position seems to me very implausible. Language may be necessary for abstract thought, at some level anyway; but states like pain are more primitive, and have nothing to do with language... Human infants and young children are unable to use language. Are we to deny that a year-old child can suffer? If not, language cannot be crucial.”

[this was quoted earlier at footnote 49]

[cxiii] Wittgenstein, PI-2 (i):

“One can imagine an animal angry, frightened, unhappy, happy, startled. But hopeful? And why not?”

[cxiv] Glock op.cit. p.56-7.

[cxv] Where by ‘logical connection’ is meant a conceptual and not empirical connection.

[cxvi] Wittgenstein PI-1 § 283.

[cxvii] This essay is included in Malcolm Wittgensteinian Themes pp 133-145.

[cxviii] ibid. p.140.

[cxix] ibid. p.140.

[cxx] ibid. p.135.

[cxxi] ibid. p.140.

[cxxii] Wittgenstein, PI-1 § 283-4.

[cxxiii] Malcolm op.cit. p.140:

“The face and limbs of a stone man cannot be twisted with spasms of pain ...”

[cxxiv] Discussed in Section 3.

[cxxv] The distinction between ‘behaviour’ and ‘action’ will be discussed shortly.

[cxxvi] Kenny (1973) p.183.

[cxxvii] Ruddick (op.cit. at footnote 5) comments:

“[Wittgenstein’s] general attack on the views that psychological terms are to be thought of as names for private sensations, rather than as tools whose meaning is given by uses in what he called ‘forms of life’, ‘the stream of life’.”

This metaphor of pain being a ‘tool’ is helpful because tools are something which are generally used for a purpose; for example, a screwdriver is a tool for turning screws not because it must be always used for such a purpose - it can be used for opening pain tins - but because it is generally so used. To say then that the connection between ‘being a screwdriver’ and ‘being capable of turning screws’ is contingent is a misdescription in that it suggests that there is no necessary relationship between these concepts.

The idea of pain being a ‘tool’ is clearly brought out in a quotation of Wittgenstein’s:

“A child discovers that when he is in pain for instance, he will get treated kindly if he screams; then he screams, so as to get treated that way. This is not pretence. Merely one root of pretence.” [Quoted by Ruddick op.cit. at footnote 7]

[cxxviii] See last quotation in footnote 127. This distinction permits a gap to be opened up between the ‘pain’ and the ‘pain behaviour’ (the scream).

[cxxix] Glock op.cit. p.157.

[cxxx] Wittgenstein PI-1 § 359-60:

“Could a machine think ? - Could a machine be in pain? ... But a machine surely cannot think! - Is that an empirical statement? No. We only say of a human being and what is like one that it thinks.”

[cxxxi] Wittgenstein PI-2 p.178.

[cxxxii] Fogelin op.cit. p.198.

[cxxxiii] Wittgenstein suggests that imagining the people around him lack consciousness is equivalent to saying they lack souls. [PI-1 § 420-422].

[cxxxiv] Wittgenstein saw an unbridgeable gulf between consciousness and brain processes so that no monitoring of brain processes can enlighten us as to questions of consciousness.

“The feeling of an unbridgeable gulf between consciousness and brain-processes: how does it come about that this does not come into the consideration of our ordinary life? This idea of a difference in kind is accompanied by slight giddiness, - which occurs when we are performing a piece of logical sleight-of-hand.”

[PI-1 § 412].

see also PI-1 § 392:

“ The analysis [in discussing pain] oscillates between science and grammar.”

[cxxxv] Rush Rees Discussions of Wittgenstein p.59.

[cxxxvi] For example,

“In the Ward’s case, it is also clear that she never got used to the nasogastric tube. She reacted against it by pulling it out an enormous number of times, probably well over a thousand times and probably also by way of reflex action to an unpleasant stimulus ...” (Lynch, J. The High Court p.21)

[cxxxvii] Compare with the statement:

“She is receiving regular small doses of the sedative Chloral. If she does not receive that she cries ‘as if in pain’ though the carers are unsure where the pain originates.”

This statement was included in a medical report submitted to the court in the case of baby C [Re C (a minor)(wardship: medical treatment )[1989] 2 AllER 782 at p.785].

[cxxxviii] Lest it be thought that this argument applies equally to those who urge a distinction between ‘real-‘pain behaviour” and ‘pretend-‘pain behaviour”, this latter distinction is justified by the expectation that the difference will be manifested in some way in the subject’s subsequent behaviour. If, in the vast majority of cases, such subsequent manifestation did not occur, then the distinction could not be made.

[cxxxix] J. L. Austin, Sense and Sensibilia, p.77.

[cxl] Passmore op.cit. p.513; he later notes (in a footnote to a discussion on Austin):

“Austin’s work has been particularly interesting to moral and legal philosophers, who have suggested that it is a ‘descriptive fallacy’ to suppose that, for example, in calling something good we are describing it or that in saying that somebody did something we are describing the person’s bodily movements, as distinct from ascribing responsibility to him.” [ibid. p.598]

[cxli] see also Kenny (1973) p.183:

“To try to connect ‘pain’ with pain in isolation from unlearnt pain-behaviour would be to try to insert language between pain and its expression. This, Wittgenstein thinks, is absurd.”

[cxlii] ibid. p.197-8

[cxliii] Dennett, Brainstorms p.212-3.

[cxliv] Kaufmann op.cit. p.172.

See also Jaspers’ statement:

“As a physician and psychiatrist I saw the precarious foundation of so many statements and actions, and beheld the reign of imagined insights, e.g. the causation of all mental illness by brain processes (I called all this talk about the brain, as it was fashionable then, brain mythology; ...), and realised with horror how, in our expert opinion, we based ourselves on positions which were far from certain, because we had always to come to a conclusion even when we did not know, in order that science might provide a cover, however unproved, for decisions the state found necessary.” [Kaufmann op.cit. p.170 emphasis added]

[cxlv] A recent television documentary entitled ‘Access All Areas: The Down Syndrome’ (Channel 4, 7^th March 1999).

[cxlvi] Hacker op.cit. p.41.

[cxlvii] Jennett and Plum (1972 p.735) argued against the use of the terms ‘decerebration’ and ‘decortication’ in relation to PVS patients:

“Both decerebration and decortication might be taken to imply a specific structural lesion: such terms are unsuitable for bedside diagnosis, when the nature of the lesion can seldom be accurately predicted and never proved.”

[cxlviii] Part 2 p.1576.

[cxlix] The concept of ‘attitude’ as used in Wittgenstein’s philosophy is examined in Chapter 10, Section 3; see also Chapter 11 Section 1(8) for a summary of the discussion.

[cl] To clarify this, consider the ascription of pain to infants (being infants, the problem of ‘pretence’ can be ruled out); let it be accepted that grimacing in such infants is a criterion of pain. Next, given an anencephalic infant who is grimacing - is it in pain? The first question to be resolved is ‘Is an anencephalic infant a suitable subject for the ascription of pain?’ - i.e. ‘Do we believe that such an infant can be in pain?’ or ‘What is our attitude to such an infant?’ - this question cannot be resolved by scientific means; if our attitude is that such infants cannot be in pain then that is the end of the matter; if our attitude is that they can be in pain, then we can ask are they in pain - it may be that what we had assumed to be a ‘grimace’ was in fact a ‘smile’ - the question of pain ascription is then open to discussion.

The problem posed by the possibility of an individual ‘pretending’ to be in pain requires that the criteria for pain ascription cannot be defined simply in terms of behaviour but need further elaboration; note however, that the question of pretence in relation to pain can only arise in relation to one who is thought capable of experiencing pain.

[cli] Bioethics, (1997).

[clii] Issues in Law and Medicine, (1991).

[cliii] McQuillen op.cit. p.383.

[cliv] ibid. p.374.

[clv] Such as:

“Although by definition the unconscious patient cannot tell you that he perceives pain, available data suggest that he may; therefore you cannot know that he doesn’t.” [ibid. p.383]

[clvi] ibid. p.382.

[clvii] ibid.

[clviii] In Section 3.

[clix] McQuillen op.cit. p.382.

[clx] Andrews (1993) at p.1601[emphasis added].

[clxi] In Dennett’s words ‘has the smell of a begged question’ (see: Brainstorms p.212).

[clxii] Thus, one either believes that animals can experience pain or one does not; the existence of pain cannot be scientifically demonstrated; see Wittgenstein [PI-1 § 284]:

“Look at a stone and imagine it having sensations ... And now look at a wriggling fly and at once these difficulties vanish and pain seems to be able to get a foothold here, ...”

[A fuller version of this quotation was given earlier at p.100]

[clxiii] In turn these can, of course, become criteria for ascribing pain.

[clxiv] i.e. other than by the examination of brain states.

[clxv] i.e. at the time the pain judgements are being made.

[clxvi] As evidenced in the current practice of giving amnesiacs in addition to anaesthetics prior to some surgical procedures. (See Section 3 above).

[clxvii] See Young PJ, Matta BF, Editorial: ‘Anaesthesia for organ donation in the brainstem dead - why bother?’ Anaesthesia, (2000).

A report in the Guardian [entitled ‘Transplant row over pain rule’ (19-8-00)] contains an especially intriguing example of medical practitioners being ‘philosophical’: in the report, Giles Morgan [President of the Intensive Care Society and the author of the original guidelines] is quoted as saying:

“In simple terms, if you are dead, you are dead and so dead people don’t require anaesthesia ... That is a fact. If you aren’t dead, you shouldn’t be having your organs taken away.”

Morgan compared the brainstem to the fuse board of a house. Without it nothing functions. Even so, he said, he would not preclude the possibility that one small bulb somewhere would flicker: ”It is disorganised random electricity. The whole brain is functionally disintegrating.“ Morgan continued:

“Nobody knows what it is like to be dead We can’t tell, so we are giving it our best shot.”

[Morgan’s philosophical justifications are no less ‘weighty’ than many of the justifications offered for the assertion that PVS patients cannot feel pain considered earlier in this Chapter.]

The Guardian article mentioned that many anaesthetists believe that the Royal Colleges had - in classifying brainstem deaths as ‘dead’ - created a philosophical and ethical fudge in their haste to start heart transplants in Britain in the 1970’s.