For some time now, I have been interested in the subject of medical ethics. With the development of science and technology, it is now possible to create life where it was once impossible. We are certainly capable of extending life. And to me, most importantly, is our ability to improve quality of life. These amazing achievements often raise complex, ethical dilemmas that reflect and stem from sociocultural and religious convictions. Is there a role for the state to assess conflicting interests of patients, medical professionals and society as a whole?
Attitudes towards palliative care vary with the legalization of euthanasia in countries like the Netherlands, Belgium and Switzerland. In France, however, euthanasia remains illegal. There are conflicting views as to interpretation and application of the current law. Interestingly, the execution of the Conseil d’État judgment, which authorized the withdrawal of nutrition and hydration to a patient in a tetraplegic state, was the subject of a recent hearing at the European Court of Human Rights’ Grand Chamber on January 7, 2015 (see Lambert and Others v. France, application no. 46043/14).
In this blog post I will share with you a controversial legal decision rendered recently by an Israeli court which might have serious implications on a patient’s right to end his/her life in Israel.
The Decision on Avoidance of Medical Treatment
In November 2014, the Tel Aviv district court issued an unprecedented decision with the consent of the Attorney General: the court authorized the avoidance of treatment for an amyotrophic lateral sclerosis (ALS) patient who for several years had been completely incapacitated–except for eye movement, which was used as a means of communication. It is important to note that the patient was not near death at the time the request was approved. (Request 16813-11-14 Anonymous v. the Attorney General [decision rendered by Judge Rahamim Cohen of the Tel Aviv district court, Nov. 23, 2014], hereafter the ALS decision or case, as appropriate)
In its decision in the ALS case, the court authorized the gradual reduction of the ventilation rate provided to the patient to a minimum, which was contingent upon verification–beyond any reasonable doubt–that the patient wished to go through with it. The court required that the reduction in the ventilation rate be performed while providing the patient palliative sedation and while avoiding any monitoring of the patient’s blood oxygen saturation and level of gas and electrolytes in his blood (id.).
The Unprecedented and Controversial Nature of the Decision
According to critics, the case was unprecedented in that it was the first Israeli case of its kind in which the respondent was the Attorney General rather than a hospital requesting to connect or avoid connecting a patient to a ventilator. It was also likely the first such case in which a request to refuse treatment was submitted by a patient who was not dying but on the verge of losing his cognitive abilities.
The decision was strongly criticized by the “Movement for a Jewish State” (MJS) as harming “the important breakthrough in the field of medical ethics and of state and religion in Israel,” culminating in the passage of the Dying Patient Law, 5766-2005, legislation passed by the Knesset (Israel’s parliament) in December 2005. See The Court has Approved Gradual Mercy Killing in an ALS patient, Nov. 12, 2014, Takdin Legal Database (by subscription).
According to the MJS, the Dying Patient Law has made Israel,
…the first country in which religious and secular [people] have succeeded in reaching a consensual compromise formula in almost all aspects of treatment of the terminal patient, and also introduced original and creative ideas, unparalleled in similar laws in the world. Now, with the extension of the Law’s criteria by the Attorney General’s strange interpretation, there is a real concern for a slippery slope in the issue of mercy killings in Israel (id.)
In the absence of legislation that could resolve the issues presented in the ALS case the MJS suggested, Israeli courts should be guided by the principles of Jewish law, which would unlikely support the authorization of the avoidance of treatment in circumstances such as those in the ALS case. For information on Jewish bioethics, readers may want to search the Library of Congress online catalog under relevant terms.
Similar concerns about the ALS holding were expressed by Uri Shtruzman, a retired judge of the Tel Aviv district court. In his view, a decision on a topic as serious as mercy killing must have been adjudicated by the Supreme Court in an extended bench and not by a district court. According to Shtruzman, instead of consenting to the request to avoid treatment, the Attorney General should
[…] move the wheels of legislation to lawfully bring solace to patients that are convinced that their death is better than their lives, or at least, to prevent the criminal indictment of those who assisted them at the end of their lives […].
(Uri Stutsman, Assisted Suicide with Permission and Authority of the District Court and the Attorney General, Dec. 12, 2014, Takdin Legal Database)
To understand the strong objections the ALS decision has raised, it is necessary to reflect on the Dying Patient Law, 5766-2005 which entered into force on December 15, 2006. (Dying Patient Law, §63)
The Dying Patient Law- Brief Legislative History and Principles
The Dying Patient Law is considered by Israeli ethicists, religious leaders and health professionals as a great achievement in that it reflects a compromise on all issues concerning dying patients in Israel. This compromise has been reflected in a draft legislation issued by a national committee appointed in 2000 by Israel’s Minister of Heath. The committee which included fifty nine experts from different disciplines and segments of Israeli society was headed by Prof. Avraham Steinberg.
The committee was divided into four subcommittees: (1) The medical/scientific subcommittee; (2) the philosophical/ethical subcommittee; (3) the legal subcommittee; and (4) the Halakhic (Jewish law) subcommittee. For additional information on the work of the committee see Avraham Steinberg, A Law Proposal in Israel Regarding the Patient at the End of Life, the Steinberg Committee, Jewish Ethics and the Care of End-of Life Patients (Peter J Hurwitz, Jacques Picard & Avraham Steinberg eds. 2006).
Incorporating the legislative proposal drafted by the committee, the Dying Patient Law was designed to regulate the medical treatment of a dying patient “while [providing] proper balance between the value of the sanctity of life, and the value of the self- autonomy of the individual and the importance of quality of life.” (Dying Patient Law §1) A dying patient is defined by the Law as one who is terminally ill and regarding whom an authorized treating physician has determined that even if provided medical care, the patient’s life expectancy does not exceed six months. (id. §3; two weeks for a patient in the last stage of life. (id. §8[b]).
While the Law permits respecting the wish of a dying patient, who possesses the legal capacity to avoid medical treatment (id. §15), under no circumstances does the Law permit any action that is “designed to kill, or which is likely to cause death, either if done out of mercy and compassion or upon the request of the dying patient or another person.” (id. §19). The Law clarifies that the same prohibition applies to any act, including medical treatment, that constitutes assisted suicide. (id. § 20)
Accordingly, cessation of a continuous medical treatment which might cause the death of a dying patient is prohibited. While the Law generally presumes that a patient desires to live (id. § 4), when the patient’s wish to cease living has been established (among others, by advanced directives, see Ch. E of the Law), the Law permits refraining from the renewal of either a cycle of medical treatment or a continuous treatment that was unintentionally and not unlawfully interrupted. (id. §§21 & 4-7)
Israeli Decisions on Requests for Avoidance of Treatment Resulting in Death
A search on Israeli legal databases such as Takdin and Nevo (both available by subscription, in Hebrew) has identified several decisions regarding avoidance of medical treatment that could result in death. The cases are indeed heartbreaking and one might wish never to be under the circumstances that that these patients or their families found themselves.
Consider for instance the decision rendered in February 2014 by the Jerusalem family court, rejecting parents’ request to prevent their 14-month-old daughter suffering from Merosin Defieciency Muscular Dystrophy (a genetic neuromuscular disease) from undergoing tracheostomy as requested by the treating hospital. The tracheostomy would likely keep her alive, though in a vegetative state for the next 10-20 years. (Case No. 24638-02-14 Shaarei Tsedek Medical Services Center v. Anonymous, decision by judge Daniel Tfarberg, available on Nevo; see related article, Tom Levy, No to Mercy Killing of a Baby- Yes to a Life Saving Surgery, Despite Parents’ Objection, Takdin [Feb. 2, 2014])
A similar decision approving a tracheostomy in an unconscious patient suffering from brain damage, against the wishes of his wife and children was approved in September 13, 2009 by the family court of Rishon LeTsion. (Request No. 28450/09 the Attorney General in the Ministry of Welfare v. B.V.V., decision by Judge Tsvi Weitzman, available on Nevo)
In both cases the patients’ life expectancy, despite their very poor physical health, was not determined as less than six months as provided in the Dying Patient Law. The Law, therefore, was not applicable; and the courts ordered the provision of life-extending medical care by performing tracheostomies.
Was there merit to the decision of the Tel Aviv district court in the ALS case? Does it reflect a new approach taken by the State of Israel to support the personal autonomy of patients to end their lives even if they are not expected to die within six month or less, as current legislation authorizes under suitable conditions? I will keep following legal developments in this area and report on them as they arise.