The Legal Status of Deep and Continuous Palliative Sedation Without Artificial Nutrition and Hydration

Deep and continuous palliative sedation combined with the withholding or withdrawal of artificial nutrition and hydration (collectively termed “PSs̄ANH”) is an important aspect of high-quality end-of-life care. It is one means of alleviating suffering. Unfortunately, the legality of this practice has been under-researched and PSs̄ANH is not yet appropriately regulated in Canada. In this paper, we explore the legal status of PSs̄ANH where it (1) will not hasten death (Type 1 PSs̄ANH); (2) might, but is not certain to, hasten death (Type 2 PSs̄ANH); or (3) is certain to hasten death (Type 3 PSs̄ANH). It is clear that Type 1 is lawful. While it could be argued that Types 2 and 3 are also lawful, their legal status is ultimately unclear. We argue that the current lack of clarity and robust regulation with respect to Types 2 and 3 is a profound disservice to suffering individuals and health care providers and should be remedied by the federal government through amendments to the Criminal Code. We then propose amendments that would bring clarity, coherence, and comprehensiveness to end-of-life law, policy, and practice and thus enable better care for the dying.