Simon Jackson
Legal Advisor to Torah MiTzion

 

The unique Terminally Ill Patients Law, 5766-2005, now in force in Israel, contains a number of examples of balancing between the value of the sanctity of life and the value of an individual’s right to decide his own destiny.

Where a terminally ill patient is interested in prolonging his life, then even if he requests medical treatment which the attending doctor considers is without justification, he must be given the requested treatment within the boundaries set by the law and the policies determined by the Ministry of Health. This is a case, in which the value of the sanctity of life and the value of autonomy coincide.

Prolonging Life and Pain to a Terminally Ill Patient Against His Wishes

Where patient is compos mentis

Where a compos mentis terminally ill patient requests that his life not be prolonged and that treatment not be administered, the value of the autonomy of the individual takes precedence over the value of the sanctity of life. Yet even in this case, the personnel attending to a terminally ill patient “must make reasonable efforts to convince him to accept oxygen, as well as food and fluids, even via artificial means, and also to accept standard treatment which is required to treat simultaneous or prior illnesses and palliative care.” This represents a practical attempt to give more fitting expression to the value of the sanctity of life, but falls short of forcing it on the patient – who has made an informed choice as to his destiny.

Where patient is not compos mentis

Treatment is not to be administered to a terminally ill patient who is not compos mentis, who suffers a significant degree of pain and who has made it clear through one of the ways recognized by the law that he does not wish to prolong his life – e.g. through a ‘living will’ (‘advance care plan’ or ‘health directive,’ both of which are now recognized as binding by Israeli law) – including examinations, surgery, resuscitation, connection to a life-support machine, chemotherapy treatments, radiation and dialysis.

On the other hand, “ancillary treatment” must still be given, even to a person who has previously expressed his wish against undergoing any further treatment. Ancillary treatment is medical treatment of a terminally ill patient which is unconnected to his incurable medical problem, and includes standard treatment required to deal with simultaneous or prior illnesses and palliative care, and similarly the provision of food and fluids, even by artificial means.

In such a situation, therefore, where, in real time, the patient is not compos mentis, but has made it clear in the past the way in which he would like to be treated in the event of becoming terminally ill, a different balance is created between the sanctity of life and the patient’s wishes – partial precedence being given to the former. However, the balance is tilted in the opposite direction, in the case of a terminally ill patient with less than 2 weeks to live. In such case, his wishes should be honored and even palliative care should be withheld, save for fluids which must continue to be given, save where the presiding doctor determines that the grant of fluids causes suffering or harm to the patient.

The Distinction Between “Continuous” and “Discrete” Treatment

Practically speaking, what emerges from the above is that it is forbidden to perform any direct activity which is intended to kill the patient, whether by way of active euthanasia or by way of assisted suicide. However, the law permits a doctor to refrain from administering treatment to an incurably ill patient at the patient’s request, provided he is suffering severe pain.
The law thus distinguishes between two types of treatment: “continuous medical treatment” – which is given constantly and without interruptions, and which admits of no clear distinction between the end of one cycle and the beginning of another (essentially, connection to a life-support machine) – and “discrete medical treatment” which is defined as “treatment that begins and ends in well-defined cycles.” Discrete treatment is extremely common treatment at the end of a person’s life and includes: chemotherapy, radiation, blood transfusions, dialysis or drug treatment.

The new law permits a doctor to refrain from administering treatment to an incurably ill patient whether at the start of treatment or whether by failing to continue discrete treatment already initiated by the doctor. By contrast, the law forbids the cessation of continuous treatment because to disconnect a life-support machine would be a direct act which causes the patient to die.

 

Next Column: To Disconnect or Not to Disconnect? – That is the Question.