Terminal Sedation: A Legal Approach

In many cases, medical end-of-life decisions precede dying. Such decisions, ranging from the alleviation of pain and symptoms and non-treatment decisions to the administration of drugs with the explicit intention of hastening death, seem to occur everywhere, although the frequency of the different types of decisions varies considerably between countries. These different types of decisions have been debated extensively in the international medical, legal and ethical literature. Usually, measures to alleviate pain are considered the least controversial. Even if such a measure may have as a side effect that the patient dies sooner, this is generally considered an acceptable consequence, as long as the physician did not aim at hastening the patient’s death, the side effect is not excessive and the measures taken are justified by the objective to reduce pain and suffering.

Decisions to withhold or to withdraw treatment (including life support) have received much more critical attention, as is demonstrated by court decisions in many countries for instance on non treatment of severely handicapped newborns, or on ending artificial feeding of patients in a persistent vegetative state. This is understandable for several reasons: when death is the forseeable consequence of a non treatment decision, the decision not to act looks very similar to active termination of life. If withholding of treatment cannot be based on the patient’s own deliberate and well informed choice, it needs to be justified on medical grounds, i.e. that (further) treatment is pointless or futile, or at least disproportional taking into account the medical situation of the patient. Especially the last situation may easily give rise to debate, in particular regarding the question to what extent the overall ‘quality of life’ of the patient may be the basis for withholding treatment.

Most controversial are measures(like administration of drugs) which are taken with the direct intention of hastening death, either on the explicit request of the patient (voluntary euthanasia), or without such a request as a medical response to severe suffering that cannot be relieved by less drastic means. Whereas the latter decision is likely to lead to prosecution in all jurisdictions (although a doctor standing trial may be acquitted in exceptional cases, for instance on the basis of a conflict of duties), euthanasia has been legalised in some countries (the Netherlands, Belgium), at least under strict conditions and safeguards.

In this case the principle of self determination plays an important role, in addition to the existence of hopeless and unbearable suffering. Nevertheless, in many countries active termination of a patient’s life is not accepted at all (although some jurisdictions do accept physician assisted suicide, which may come very close to euthanasia).

In the last five to ten years there has been increasing debate on a medical practice at the end-of-life that is difficult to place between the aforementioned end of life decisions. This practice is called terminal sedation, although other concepts are used as well (palliative sedation; deep sedation). Terminal sedation is the administration of sedative drugs with the aim to reduce the consciousness of a terminal patient in order to relieve distress; it is frequently accompanied by the withdrawal (or withholding) of life sustaining interventions, such as hydration and nutrition. It is typically a measure of the last resort to be considered in situations where all other measures to reduce pain and suffering have failed. While similar to palliative measures as far as the sedation itself is concerned, withholding of hydration and nutrition brings terminal sedation into the realm of non treatment decisions. At the same time, to the extent that the combination of these two measures may shorten the patient’s life, the practice may be easily associated with euthanasia.

It is no surprise, therefore, that terminal sedation has been called (and has been disqualified as) ‘slow euthanasia’ or ‘backdoor euthanasia’, suggesting that it should be dismissed as a covert form of a practice which is by many already considered as unacceptable per se.

Abstract:

The question in this article is how terminal sedation may be looked upon from a legal point of view. Is it indeed a disguised form of euthanasia, or should it be considered as a practice in its own right? In the latter case, what does it imply in legal terms, and under wich conditions and safeguards could it be legally justified?
In addressing these questions we will have to look first at the different clinical realities that may be brought under the heading ‘terminal sedation’. Subsequently the results of a recent survey of (inter alia) terminal sedation in the Netherlands will be reported The next section deals with the two components of terminal sedation – sedation on the one hand, and withholding artificial nutrition and feeding on the other – in a legal perspective. The article ends with conclusions on terminal sedation as a whole.