Palliative Interventions

What are palliative interventions?
Palliative interventions aim to relieve suffering and improve quality of life for those who are living with, or dying from, an illness.

[Palliative care is the] active total care of patients whose disease is not responsive to curative treatment.  Control of pain, of other symptoms, and of psychological, social, and spiritual problems is paramount.  The goal of palliative care is the achievement of the best quality of life for patients and their families.

Cancer Pain Relief and Palliative Care: Report of a WHO Expert Committee. Geneva: World Health Organization, 1990.

Palliative interventions include medical practices that attempt to provide some relief from pain or other suffering at the end of life. Interventions can include:

  • pain medication
  • oxygen
  • intravenous or nasogastric feeding
  • blood products
  • anti-nausea medication
  • anti-anxiety medications

Palliative interventions can also include psychosocial support, such as counseling, and spiritual support for both the patient and the family.

While all palliative interventions aim to help the patient be as comfortable as possible, some have the potential to cause death.  There are two categories of potentially life-shortening palliative interventions: potentially life-shortening opioid use; and palliative sedation.

What is potentially life-shortening opioid use?
One common palliative intervention for the treatment of pain is the use of opioids (synthetic narcotics that have opiate-like activities but are not derived from opium). Opioids are a group of drugs that act on opiate receptors in the brain and thereby reduce pain. This group of drugs includes morphine, codeine, heroin, fentanyl, meperidine, and oxycodone. Opioids can cause several things to happen. They can block pain. They can cause drowsiness. They can relax muscles. They can also depress respiration (breathing) and it is this depression in respiration that can be fatal – in rare circumstances – even where the opioids are being used appropriately. In some rare cases, the amount of medication or rate of administration necessary to control a person’s pain may cause such a reduction in respiration that it causes the person’s death. In some rare cases, just how much of the drug or just how fast it can be administered without causing death is not known.
Is potentially life-shortening opioid use legal?
Probably.  In the Supreme Court of Canada case of Rodriguez v British Columbia (Attorney General), reference was made to the practice of giving potentially life-shortening treatment to alleviate a person’s pain and suffering.  While the real issue in that case concerned assisted suicide, Justice Sopinka, for the majority of the Court, stated that potentially life-shortening palliative interventions are not illegal:

The administration of drugs designed for pain control in dosages which the physician knows will hasten death constitutes active contribution to death by any standard.  However, the distinction drawn here is one based upon intention…in any case of palliative care the intention is to ease pain, which has the effect of hastening death…  In my view, distinctions based upon intent are important, and in fact, form the bases of our criminal law.  While factually the distinction may, at times, be difficult to draw, legally it is clear.

 

Similarly, in a Memorandum to Ontario Coroners – Memo A603 – dated November 29, 1991, the Chief Coroner for Ontario at the time, Dr. James G. Young, reminded Ontario’s coroners that palliative care that results in death is not considered to be criminal, if the following four conditions are satisfied:

  1. the care must be intended solely to relieve suffering;
  2. it must be administered in response to suffering or signs of suffering;
  3. it must be commensurate with that suffering; and,
  4. it cannot be a deliberate infliction of death.

Documentation is required, and the doses must increase progressively.

Similarly again, in 1993, the British Columbia Attorney General issued guidelines for Crown Counsel relevant to the provision of potentially life-shortening opioid use.  According to these guidelines, a medical practitioner will not be subject to criminal prosecution for the administration of “palliative care” unless there is a substantial likelihood of conviction and the public interest requires it.  According to the British Columbia guidelines, charging decisions will be made on a case-by-case basis following an examination of the facts and circumstances of each case and taking into consideration the following additional factors:

  • whether the acts of the qualified medical practitioner, or a person acting under the general supervision of a qualified medical practitioner constitute “palliative care” as stated by Justice Sopinka in the Rodriguez case;
  • whether the patient was terminally ill and near death with no hope of recovery;
  • whether the patient’s condition was associated with severe and unrelenting suffering;
  • whether accepted ethical medical practices were followed; and,
  • whether the patient was participating in a palliative care program or palliative care treatment plan.

More recently, albeit at a lower court, Justice Smith addressed this issue in Carter v. Attorney General (Canada):

Since Rodriguez, it has been clear that potentially life-shortening symptom relief is permissible where the physician’s intention is to ease pain. (at 226)

Is there a legally significant difference between potentially life-shortening opioid use and euthanasia?
Justice Sopinka, writing for the majority of the Supreme Court of Canada in Rodriguez v British Columbia (Attorney General), believed there was a legally significant difference between potentially life-shortening opioid use and euthanasia:

The administration of drugs designed for pain control in dosages which the physician knows will hasten death constitutes active contribution to death by any standard. However, the distinction drawn here is one based upon intention…in any case of palliative care the intention is to ease pain, which has the effect of hastening death…  In my view, distinctions based upon intent are important, and in fact, form the bases of our criminal law.  While factually the distinction may, at times, be difficult to draw, legally it is clear.

However, Justice Smith, writing in Carter v. Attorney General (Canada), disagreed and denied the distinction:

Canada says that the criminal law does not appear to recognize a distinction between intentionally bringing about a prohibited consequence and doing something knowing that the prohibited consequence is virtually certain to result… I think that Canada is correct. (at 328)
 

The preponderance of the evidence from ethicists is that there is no ethical distinction between physician-assisted death and other end-of-life practices whose outcome is highly likely to be death.  I find the arguments put forward by those ethicists, such as Professor Battin, Dr. Angell and Professor Sumner, to be persuasive. (at 335)

 

In an individual case, whether based on a distinction between foreseeing and intending, on a distinction between acts and omissions, or on other grounds, a bright-line ethical distinction is elusive. (at 338)

It can be hoped that the legal significance of the difference between potentially life-shortening opioid use and euthanasia will be clarified by the Supreme Court of Canada after it hears the appeal in Carter v. Attorney General (Canada) in October 2014.

What is total sedation?
Total sedation is the practice of administering drugs to make a person totally unconscious without potentially shortening the person’s life. The practice of total sedation is used for intolerable suffering that cannot be relieved by other interventions acceptable to the patient.
Is total sedation legal?
Yes, total sedation is legal.
Is there a legally significant difference between total sedation and euthanasia?
Yes, total sedation does not cause death while euthanasia causes death.
What is palliative sedation?
Palliative sedation is the practice of total sedation combined with the withholding or withdrawal of potentially life-sustaining artificial hydration and nutrition.  Palliative sedation might be requested in a number of circumstances. For example:

  • a patient is imminently dying (within hours) and her physical pain cannot be controlled in any other way;
  • a patient is expected to die within a month and her physical pain cannot be controlled in any other way;
  • a patient is expected to die within a week, is not suffering physical pain, but is suffering existential pain that cannot be controlled in any other way; or,
  • a patient has ALS and is expected to live six more months but his life is no longer worth living to him.
Is palliative sedation legal?
The legal status of palliative sedation is somewhat unsettled in Canada.  There is no legislation that directly addresses it, nor have there been any court cases that have directly tested it. As noted by Justice Smith in Carter v. Attorney General (Canada),

So far as I am aware, palliative or terminal sedation has not been the subject of judicial consideration in Canada.  It seems, however, to be a practice that may fall within the principles already described with regard to informed consent and potentially life-shortening symptom relief (at 226).

Although the SCC in (Carter v Canada (Attorney General) did not specifically address “terminal sedation” when it released its decision on February 6, 2015, it did strike down the prohibitions on assisted suicide and voluntary euthanasia. Therefore, it is reasonable to conclude that palliative sedation will certainly be legal as of February 7, 2016 (under the same conditions as euthanasia).  However, it will still be unclear whether/when palliative sedation is legal beyond the conditions applied to euthanasia.

There are some guidelines that have been adopted by regional health authorities (see, for example: Fraser Health Refractory Symptoms and Palliative Sedation Therapy Guideline) or professional groups (for example, see: Dean et al, “Framework for Continuous Palliative Sedation Therapy in Canada” ((2012) 15:8 Journal of Palliative Medicine 870 (formerly endorsed by the Canadian Society for Palliative Care Physicians)).  Albeit in exceptional circumstances, the Fraser Health Guideline permits palliative sedation in patients for whom death is not imminent and whose suffering is “existential”.  It also permits palliative sedation without the explicit request of the patient (consent can be given by the patient’s substitute decision-maker). Similarly, again in exceptional circumstances, the Framework permits palliative sedation in patients who have more than two weeks to live and in cases of “severe existential distress”. The Framework also provides that consent can be given by a patient’s substitute decision-maker.

On June 6, 2014, the Quebec government passed An Act respecting end of life care.  This legislation significantly advances the law with respect to this kind of end of life care (establishing a right to it, providing criteria for its delivery, and providing oversight of it).  However, of course, it only applies in Quebec.

Is there a legally significant difference between palliative sedation and euthanasia?
Sometimes yes and sometimes no.  In some circumstances, palliative sedation does not cause death (e.g., when artificial hydration and nutrition is withheld within hours of death).  In such circumstances, it is different from euthanasia as euthanasia, by definition, causes death.  In some circumstances, palliative sedation does cause death (e.g., when the person would not be expected to die from their disease for many months and artificial hydration and nutrition is withheld).  In such circumstances, it is not different from euthanasia as both involve causing the death of a person with the intention of relieving that person’s suffering. As concluded by Justice Smith in Carter v. Attorney General (Canada),

The preponderance of the evidence from ethicists is that there is no ethical distinction between physician-assisted death and other end-of-life practices whose outcome is highly likely to be death.  I find the arguments put forward by those ethicists, such as Professor Battin, Dr. Angell and Professor Sumner, to be persuasive. (at 335)

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