PATERNALISM AND AUTONOMY IN END-OF-LIFE DECISION-MAKING: THE ISRAELI NORMATIVE AMBIVALENCE

Israel Yearbook on Human Rights

Volumn 29, Issue , 1999, Pages 121-136

  Shalev, Carnel ^a  

^a GERTNER INSTITUTE FOR EPIDEMIOLOGY AND HEALTH POLICY RESEARCH   (Israel)

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EID: 7444272544     PISSN: 03335925     EISSN: None     Source Type: Book Series    
DOI: 10.1163/9789004423138_011     Document Type: Chapter

References (19)

1. All in all 10 proceedings have come before the courts, eight of which involved adults. Of these, five addressed the cases of six persons suffering from ALS. C.A. 946/87, Nehaisi v. Israel Medical Association, 42(1) Piskei Din (Reports of the Israel Supreme Court, hereinafter: P.D.) 135 (hereinafter: Nehaisi); O.M. (Opening Motion) (TA) 1141/90, EYal v. Dr. Villensky, 5751(3) Psakim Mehoi'iim (Reports of District Courts, hereinafter: P.M.) 182 (hereinafter: Eval); O.M. (BS) 1030/95, Gilad v. Soroka Medical Center, 5756(1) P.M. 441 (hereinafter: Gilad); O.M. (TA) 2349, 2242/95, I.A. and Y.S. v. Klalit Sick Fund (as yet unpublished), hereinafter: Itai Arad; and O.M. (TA) 401/98, Meir v. Attorney-General (as yet unpublished) (hereinafter: Meir).
2. O.M. (TA) 759/92, Zadok v. Beit Ha'Elah, 5752(2) P.M. 485 (hereinafter: Zadok).
3. S O .M . (TA) 528/96, Bivas v. Tel Aviv-Jaffa Municipality (as yet unpublished) (hereinafter: Bivas).
4. C.A. 3031/99, Attorney General v. Lubetzky (judgment of 30 May 1999) (as yet unpublished) (hereinafter: Lubetzky).
5. C.A. 506/88, Yael Shefer v. State of Israel, 48(1) P.D. 78 (hereinafter: Shefer); C.A. 5587/97, Attorney General v. Ben Ikar, 51(4) P.D. 830 (hereinafter: Ben Ikar).
6. Nehaisi (establishing jurisdiction to grant declaratory relief in the district courts); Lubetzky (dismissed for lack of evidence as regards the wishes of the now-incompetent patient).
7. 7 5754 Sefer Hahukim (Principal Legislation, Hebrew, hereinafter: S.H.) 90 (10 March 1994). See Sec. I of the original version - 5752 S.H. 150 (25 May 1992).
8. Of course Israeli law, too, recognizes a duty to preserve life, but the principle applies differently to the life of another person and to one's own.
9. Ministry of Health, Director-General Circular No. 2/96 (31 January 1996).
10. The directives state that "treatment should not be forced on a terminal patient who refuses it consciously, when it might cause suffering or harm to his body, dignity and 'human image' and when the treatment would merely prolong artificially the process of the end of life. When the patient's life cannot be prolonged or where his suffering cannot be alleviated, the use of artificial resuscitation and respiration is futile ..., and when it merely prolongs the natural process of dying it is even contrary to the physician's basic ethical duty".
11. See Sec. 309(4) of the Penal Law-1977 - defining the offense of causing death: "A person shall be deemed to have caused the death of another person although his act or omission is not the immediate or sole cause of death, ... if by his act or omission he hastens the death of a person suffering from any disease or injury which even without such act or omission would have caused death".
12. 13 The same judge had granted such relief in respect of withdrawing treatment in a previous case - Itai Arad (1996), but there the original application to the court had referred only to withholding treatment.
13. This legal construction appears to be at variance with the sentiments of medical practitioners, that there is emotional difficulty in actually pulling the plug.
14. 5756 S.H. 327 (1 May 1996).
15. 5752 Hatza'otHok (Bills of the State of Israel, Hebrew) 359 (16 March 1992).
16. Doctor Mercy", Ha'AretzWeekend Supp., (Hebrew) 4 December 1998, at 18.
17. "I am feeling suffocation"; "I cannot stand any more suffering"; "I am of clear mind and well aware of my request"; "I cannot swallow except with great difficulty"; "My life today is a continuing nightmare".
18. "1 request pain killers"; "I want to see the head of the department"; "I wish to be hospitalized".
19. O.M. (TA) 1403/99, Lubetzky v. Klalit Sick Fund (decision of 15 April 1999) (as yet unpublished).