Intractable Pain Paper on SSRN

"Intractable Pain, Palliative Management and the Principle of Medical Futility"

CUA Columbus School of Law Legal Studies Research Paper No. 2008-28

GEORGE P. SMITH, Catholic University of America - Columbus School of Law

ABSTRACT:
This monograph examines the issue of existential or psychological pain and how, heretofore, it has been dealt with by hospice or palliative care - concluding, as such, that terminal or deep sedation should be embraced more widely within the Ethic of Adjusted Care as a part of the compassionate management of the dying.

The first element of palliative treatment in hospice care is symptom control - pharmacological and psychological - in the dying patient. Today, pain relief - be it physical, mental, social or spiritual - is being recognized more and more as a fundamental human right. If voluntary refusals by competent dying patients of hydration and nutrition are tolerated routinely by both the legal and medical professions, as well as society at large - even though these actions hasten death - then, surely, under the Doctrine of Mercy and/or Principle of Beneficence, assistance in relieving chronic, irremediable pain should be allowed when requested.

The Principle of Medical Futility, supplemented by the Doctrine of Double Effect, can serve as a decisive tool for both physicians and judges when called upon to evaluate end-of-life care. If a patient is in a futile condition, efficacious treatment should be given even if the secondary effect of that assistance means hastening life's cruel and inhumane ending. Terminal sedation is just that: recognized treatment. It should not be confused, taxonomically, by denominating it as euthanasia, murder, or assisted suicide. Rather, it is but an act of self-determination.

The time has come to step outside the mired and endless moral argumentation over the "slippery slope consequence" of validating a right, however exercised, to a good (painless) death and acknowledge - decisively - that standards of common decency, compassion and mercy demand nothing less.