Terminal sedation: palliative care for intractable pain, post Glucksberg and Quill.

I. INTRODUCTION In 1997, the U.S. Supreme Court tacitly endorsed terminal sedation as an alternative to physician-assisted suicide, thus intensifying a debate in the legal and medical communities as to the propriety of terminal sedation and setting the stage for a new battleground in the "right to die" controversy.1 Terminal sedation is the induction of an unconscious state to relieve otherwise intractable distress, and is frequently accompanied by the withdrawal of any life-sustaining intervention, such as hydration and nutrition.2 This practice is a clinical option of "last resort" when less aggressive palliative care measures have failed.3 Terminal sedation has also been described as "the compromise in the furor over physician-assisted suicide."4 Medical literature suggests that terminal sedation was a palliative care option long before the Supreme Court considered the constitutional implications of physician-assisted suicide.5 Terminal sedation has been used for three related but distinct purposes: (1) to relieve physical pain; (2) to produce an unconscious state before the withdrawal of artificial life support; and (3) to relieve non-physical suffering.6 This Article will focus primarily upon terminal sedation consisting of both deep sedation and the withdrawal of nutrition and hydration. Unless otherwise indicated, references to terminal sedation are to this practice. There is currently no comprehensive data as to the use of sedation for pain control among palliative care patients. Various hospice and other patient studies have reported that sedation, with or without the withdrawal of sustenance or medical intervention, is used for symptom control among terminally ill patients from 21%7 to 54.5% of the time,8 with reports in between of 48%,9 26%10 and 30%.11 Several studies have reported that the average time from sedation to death appears to be between two and four days.12 In essence, the debate over terminal sedation is whether the practice constitutes or is the legal and moral equivalent of euthanasia. Commentary on this issue represents a spectrum of opinions, ranging from those adamantly opposed to terminal sedation to advocates of the practice. Some critics of terminal sedation liken the practice to euthanasia, viewing the induction of unconsciousness and the withdrawal or refusal of life-sustaining intervention as a continuous act which a physician knows will cause the death of the patient. Combining the induction of unconsciousness with the withdrawal of life-sustaining measures, however, confuses the legal issues raised by this practice. This Article posits that the induction of unconsciousness and the withdrawal or refusal of life-sustaining medical intervention must be viewed as separate acts supported by different legal and ethical doctrines. Specifically, the induction of unconsciousness relies upon longstanding and accepted clinical practices, and the withdrawal of life-sustaining interventions relies upon the principle of patient autonomy. This Article will clarify the legal issues underlying terminal sedation, which are not necessarily dictated by the ethical considerations. Specifically, this Article will review the legal jurisprudence and ethical doctrines supporting terminal sedation, summarize the debate among legal and medical commentators and analyze terminal sedation in the context of the criminal justice system. It will also consider the obstacles to terminal sedation as an option for palliative care and discuss potential remedies to those obstacles. This Article concludes that terminal sedation is a legal practice which should survive challenges of both a criminal and civil nature. II. THE EVOLUTION OF RIGHT-TO-DIE JURISPRUDENCE AND THE LEGAL EVOLUTION OF TERMINAL SEDATION Legal challenges asserting a "right to die" have focused largely on the concept of bodily integrity.13 The legal notion of bodily integrity, which includes the freedom from battery, has its origin "in the requirement that informed consent is generally required for medical treatment. …