Simon Jackson
Legal Advisor to Torah MiTzion
Background to the New Legislation
From the State’s establishment and until the passing of the new law, there was no recognized and binding normative arrangement as to the comprehensive treatment of the terminally ill patient. While doctors in medical centers throughout Israel did treat such patients by various means, little accountability was required leading to a general dearth of reports and proper debate on the relevant treatment. Over the years, attempts were made to regulate the matter through legislation, but nothing actually made it to the statute book.
The Terminally Ill Patients Law, 5766-2005 was described by then Health Minister, Dan Naveh, as “on the human level, one of the most complicated and most important laws ever legislated by the Knesset,” who hailed it as “a great moral achievement for the dying and their families.”
Principles of the New Law
The new law relates only to a patient suffering from an incurable medical problem whose life expectancy, even if he is given medical treatment, does not exceed 6 months. The law also relates specifically to the terminally ill patient at the final stages of his life, i.e. when a number of essential systems have failed and his life expectancy, even if he does receive medical treatment, does not exceed 2 weeks.
The law regulates the medical treatment due to the terminally ill, while forging the proper balance between the value of the sanctity of life on the one hand, and the value of the autonomy of a person’s wishes and the importance of quality of life on the other. Section 1 of the law makes clear that it is “based on the values of the State of Israel as a Jewish and democratic state, and on fundamental principles of ethics, morality and religion.”
In line with these principles, the law sets forth the boundaries of what is permitted and what is forbidden when treating terminally ill patients, as well as the proper means of taking decisions in relation to him.
Forbidden Activities
On the one hand, the law recognizes the value of the holiness of life as the supreme value. It therefore determines that: “It is presumed that every person wishes to live, unless proven otherwise” and that “if is not proven otherwise beyond reasonable doubt – the patient must be presumed to want to continue to live.”
The law further makes it very clear that: “Nothing in the law permits any action, even medical treatment, which is intended to kill, or will almost certainly cause the patient’s death, whether or not such action is performed out of kindness and compassion, and whether or not the patient himself or another person requests it.”
The law similarly stipulates that: “None of the provisions of the law permit any activity, even if by way of medical treatment, which would assist suicide, whether or not such action is performed out of kindness and compassion, and whether or not the patient himself or another person requests it.”
Active euthanasia and suicide thus remain strictly forbidden.
What the Law Permits
However, the law also recognizes the principle of the freedom of the individual to choose, under the conditions and in the situations defined in the law. Thus, a terminally ill patient, who is competent (17 years old, able to express his opinion and of sound mind etc.), and who does not wish for his life to be extended, “must have his will honored and medical treatment on him must be avoided.” It follows that a person’s life need not be prolonged in all circumstances, albeit that in general the principle of the sanctity of life will prevail.
Institutional Committee and the National Committee
The law requires the establishment of a number of committees to resolve issues which are unclear or are in dispute. The law even requires the formation of a National Committee to hear appeals, as well as decide special questions – e.g. to ascertain the wishes of a non-compos mentis terminally ill 17 year old, suffering a significant degree of pain for the purpose of refraining from administering medical treatment (save for ancillary treatment). The goal of these committees is to avoid litigation in the courts on sensitive and complex matters such as treatment to terminally ill patients, because it is preferable to deal with these issues in a multi-disciplinary committee, with members drawn from experts in the fields of medicine, nursing, social work, psychology, law, ethics and religion.
Next Column: Balancing of Values in the New Law: Sanctity of Life v. Autonomy of the Individual
