Palliative Sedation and the Louisiana Natural Death Act

• Author: Frederick R. Parker Jr.
• Position: J.D., Paul M. Hebert Law Center, Louisiana State University; LL.M. (in Health Law), University of Houston; LL.M. (in Taxation), New York University; Professor, Louisiana State University in Shreveport; Of Counsel, Onebane Law Firm, Lafayette and Shreveport, Louisiana
• Pages: 1103-1146

Palliative Sedation and the Louisiana Natural Death

Act1

Frederick R. Parker, Jr.*

TABLE OF CONTENTS

Introduction ................................................................................ 1104

I. Defining Palliative Sedation: Clinical Methods and

Related Legal and Ethical Implications...................................... 1106

A. The Relationship Between Palliative Sedation,

Assisted Suicide, and Euthanasia......................................... 1107

B. Forms of Palliative Sedation in the Clinical Setting ............ 1109

C. Palliative Sedation and Professional Medical Standards ..... 1115

II. The Status of Sedation to Unconsciousness as a

Matter of Constitutional Law ..................................................... 1116

A. The “Negative” Right of a Terminally Ill Patient

to Withhold or Withdraw Life-Sustaining Treatment .......... 1116

B. The “Positive” Right of a Terminally Ill Patient to

Receive the Assistance of a Physician in Committing

Suicide, and the Problematic Relationship Between

Sedation to Unconsciousness, Assisted Suicide,

and Euthanasia ..................................................................... 1122

Copyright 2019, by FREDERICK R. PARKER, JR.

* J.D., Paul M. Hebert Law Center, Louisiana State University; LL.M. (in

Health Law), University of Houston; LL.M. (in Taxation), New York University;

Professor, Louisiana State University in S hreveport; Of Counsel, Onebane Law

Firm, Lafayette and Shreveport, Louisiana.

1. The author and Charles J. Paine, M.D., developed the clinical cases

discussed in this Article for a Special Report. See Frederick R. Parker & Charles

J. Paine, At the Intersection of Tax Policy and Bioethics: Considering Tax-Exempt

Status in the Context of Palliative Sedation to Unconsciousness, in 66 EXEMPT

ORG. TAX REV. 121 (2010). That work addressed the issue of whether a health

care facility’s tax -exempt status should be conditioned upon its adherence to

minimum ethical standards when providing e xtreme palliative interventions. Id.

Portions of the clinical basis for the tax policy discussion in that publication are

presented here with the permission of Tax Analysts.

1104 LOUISIANA LAW REVIEW [Vol. 79

III. The Status of Sedation to Unconsciousness Under

the Louisiana Natural Death Act ................................................ 1131

A. The Purpose and Scope of the Natural Death Act ............... 1132

B. Application of the Natural Death Act to

Palliative Sedation ............................................................... 1137

Conclusion .................................................................................. 1145

INTRODUCTION

The latter part of the 20th century saw significant developments in the

fields of health law and bioethics in the United States when advances in

artificial respiration, circulation, nutrition, and hydration made it possible

to maintain biological life well beyond the natural ability of the human

body.2 These life-sustaining clinical interventions gave rise to solemn

questions in law and bioethics not only about the scope of a patient’s right

to refuse such measures, but also about the corresponding extent of a

physician’s obligation to provide them.3

A fairly consistent body of jurisprudence, statutory schemes, and

pronouncements of professional ethics has mostly resolved these

questions—all of which acknowledge in general terms the fundamental

nature of one’s right to accept or refuse life-sustaining medical treatment.

Although the jurisprudence reflects a diversity of thought in terms of legal

theory, courts have demonstrated a consistent appreciation for the same

moral and ethical concerns that have guided the medical profession and

the various state legislatures in their efforts to balance appropriately the

competing interests of the individual in the exercise of autonomy and the

state in the preservation of life.4

2. See, e.g., Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 328 (1990);

In re Quinlan, 355 A.2d 647 (N.J. 1976), cert. denied sub nom. Garger v. New

Jersey, 429 U.S. 922 (1976).

3. See generally ALAN MEISEL & KATHY CERMINARA, THE RIGHT TO DIE:

THE LAW OF END-OF-LIFE DECISIONMAKING § 2.01 (3d ed. 2004 & Supp. 2008).

4. Although the early cases arose in the context of religious liberty under the

First Amendment, the later cases focused on the common law concept of informed

consent to medical treatment and the corollary right not to consent, as well as the

rights to privacy and liberty grounded in the Constitution. See, e.g., Union Pac.

Ry. Co. v. Botsford, 141 U.S. 250 (1891); Superintendent of Belchertown St. Sch.

v. Saikewicz, 370 N.E.2d 417 (Mass. 1977); In re Storar, 420 N.E.2d 64 (N.Y.

1981), cert. denied, 454 U.S. 858 (1981); In re Conroy, 486 A.2d 1209 (N.J.

1985); In re Estate of Longeway, 549 N.E.2d 292 ( Ill. 1989); Jacobson v.

2019] PALLIATIVE SEDATION 1105

Questions in early cases concerning patient autonomy in the context of

end-of-life decision-making focused only on the scope of one’s right to

refuse life-sustaining treatment.5 In contrast with this traditionally negative

focus, the contemporary formulation of the query goes further by asking

whether, or under what circumstances, the law would accommodate the

positive right of a patient not only to refuse treatment in the form of artificial

nutrition and hydration, but also to be rendered unconscious and maintained

in that state without sustenance until death ensues. This question can present

itself in a variety of clinical situations:

A patient in the advanced stages of lung cancer requests morphine and

other sedatives in doses that increase proportionately as the intensity of

his distress deepens with the progression of the disease. Expecting to

eventually receive sedatives in doses that render him permanently

unconscious, the patient asks that nutrition and hydration are withheld

when he becomes unable to ingest food and fluids on his own.

A patient who suffers from esophageal cancer declines further

treatment in the form of artificial nutrition and hydration when the

disease progresses to the point that he can no longer swallow. He also

asks to be sedated immediately to unconsciousness to relieve the

suffering that eventually will accompany the absence of food and

fluids, with death by dehydration to be expected within a few days.

A patient who suffers intractable and interminable pain as a result

of rheumatoid arthritis has asked to be sedated immediately to

unconsciousness to relieve her suffering. Although the disease

process does not impair her natural ability to receive food and

fluids, she requests that artificial nutrition and hydration are

withheld until she dies.

A patient who survived numerous bouts of cancer while raising her

children to adulthood is now in remission. Although she is able to

ingest food and fluids naturally on her own, she is fearful that her

cancer will return and asks to be sedated to unconsciousness and then

be allowed to die by the withholding of artificial nutrition and

hydration.

Massachusetts, 197 U.S. 11, 24–30 (1905); Washington v. Harper, 494 U.S. 210,

221–22 (1990); Vitek v. Jones, 445 U.S. 480, 494 (1980); In re Yetter, 62 Pa. D.

& C.2d 619 (Pa. Com. Pl. 1973); In re Quinlan, 355 A.2d 647 (N.J. 1976).

5. See, e.g., cases cited supra note 4.