Document Type

Article

Publication Date

2025

Publication Information

35 Indiana International & Comparative Law Review 67 (2025)

Abstract

Deep and continuous palliative sedation combined with withholding or withdrawal of artificial nutrition and hydration (collectively termed “PSs̄ANH”) is a medical process regularly used in end-of-life care as a means of alleviating suffering. But PSs̄ANH is often not governed by a clear legal framework. To shed light on different approaches to regulating PSs̄ANH, this Article conducts a comparative analysis of the PSs̄ANH legality across twelve jurisdictions.

To facilitate understanding of this broad issue, we subdivided PSs̄ANH into three categories:

(1) PSs̄ANH will not hasten death (“Type 1 PSs̄ANH”),
(2) PSs̄ANH might, but is not certain to, hasten death (“Type 2 PSs̄ANH”), and
(3) PSs̄ANH is certain to hasten death (“Type 3 PSs̄ANH”).
This division maximizes the clarity and precision of comparative analysis. But not all twelve of our target jurisdictions recognize this tripartite distinction.

This research fills a gap in the current literature on the legality of end-of-life options. Other end-of-life options have been more extensively analyzed. For example, the legality of medical assistance in dying (“MAID”) has received significant academic attention, particularly with the introduction of euthanasia legislation in several countries in recent decades. Voluntary stopping of eating and drinking (“VSED”) has also been the subject of increased commentary.

PSs̄ANH, by contrast, has gone largely unexamined. There is a particularly notable absence of international and comparative analyses of PSs̄ANH. Available international analyses cover palliative care generally rather than PSs̄ANH specifically.

In two respects, this Article goes beyond the rules on palliative sedation laid down in health care guidelines. First, studies analyzing guidelines in various jurisdictions demonstrate that guidelines often do not discuss Type 3 PSs̄ANH (or any type of PSs̄ANH). Instead, they discuss only palliative sedation and the withholding or withdrawal of artificial nutrition and hydration separately). Second, guidelines may provide an incomplete picture of the legality of PSs̄ANH. Practitioners often rely on guidelines without any further analysis of the actual legal position of PSs̄ANH and related practices. Because the standard of care is often set or influenced by these guidelines, practitioners can often raise the guidelines as a defense to a claim that they acted in breach of their duty of care. However, guidelines may not provide a complete defense in all situations where medical practitioners administer PSs̄ANH.

Download

Share

COinS