End-of-Life Care in Israel—The Dying Patient Law, 2005

Israel Law Review

Volumn 42, Issue 2, 2009, Pages 279-305

  Shalev, Carmel ^a  

^a UNIVERSITY OF HAIFA   (Israel)

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EID: 77957662812     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700000583     Document Type: Article

References (56)

1. Dying Patient Law, 2005, S.H. 330.
2. Of course, there are humanistic moral grounds, as well as religious, for attributing value to the sanctity of life. Thus, indeed, the right to life is protected as both a negative and positive right under Basic Law: Human Dignity and Liberty, 1992, S.H. 150 amended 1994 S.H. 90. An English translation of the law is available at http://www.knesset.gov.il/laws/speciaI/eng/basic3_eng.htm.
3. However, in the context of the public debate in Israel on the right to die with dignity, the major conflict was between the view of the patient's autonomy, or right to refuse treatment, and the view of the sanctity of life according to orthodox interpretation of Jewish law (halakhd). The debate was framed in this fashion by Justice Elon in his seminal treatise on the subject in CA 506/88 Yael Shefer v. The State of Israel [1993] IsrSC 48(1) 78) [hereinafter Shefer case]; this framing is consistent with the view of Justice Elon on the tension present in the constitutional definition of Israel as a “Jewish democracy” under the Basic Law.
4. Dying Patient Law, IsrSC, sec. 9.
5. Patient Rights Law, 1996, S.H. 729.
6. Amos Shapira, Informed Consent to Medical Treatment-Positive and Normative Law, 14 Iyunei Mishpat 242 (1989) [in Hebrew].
7. Isaiah Berlin, Two Concepts of Liberty, in Four Essays on Liberty 131 (1969).
8. AAM 6219/03 Anonymous v. Ministry of Health [2004] IsrSC 58(6) 145, 150 (translated C.S.).
9. CA 2781/93 Ali Da'aka v. Carmel Hospital [1999] IsrSC 53(4) 526.
10. Id at 571–573 (per Justice Orr).
11. Patient Rights Bill, 1992, H.H. 359 (translated C.S.).
12. In a previous article I gave a detailed analysis of the case law preceding the enactment of the Dying Patient Law, 2005.
13. See Carmel Shalev, Paternalism and Autonomy in End-of-Life Decisionmaking: The Israeli Normative Ambivalence, 29 Isr. Y.B. Hum. Rts. 121 (1999).
14. The right to provide informed consent for medical treatment implies an exercise of choice whether or not to undergo treatment. If a patient has a right to refuse treatment, then a request to withhold treatment in the first place falls within the scope of that right. If it is permissible to desist from initial treatment, then logically it is permissible to desist from further treatment. From the perspective of the patient, when medical treatment is administered contrary to his or her wish there is a violation of the constitutional right to bodily integrity, and it is irrelevant whether or not treatment has already begun. In other words, it is irrelevant whether the patient wishes to refrain from (withhold) treatment in the first place or to discontinue (withdraw) ongoing treatment. For fiirther explanation of this view, see Carmel Shalev, Paternalism and Autonomy in End-of-Life Decision-making, id. at 127
15. the discussion infra Section III(A).
16. OM (TA) 2349/95 Itai Arad v. Klalit Sick Fund [1996] IsrDC 55(2) 253.
17. OM (TA) 401/98 Meir v. Attorney-General (unpublished).
18. OM (TA) 759/92 Zadok v. Beit Ha'Elah [1992] IsrDC 52(2) 485.
19. Shefer case, IsrDC
20. LCA 5587/97 Attorney-General v. Ben Ikar [1997] IsrSC 51(4) 830 [hereinafter Ben Ikar].
21. Shefer case, IsrSC.
22. Ben Ikar case, IsrSC.
23. SM (TA) 10403/99 Lubetzky v. Clalit Sick Fund [Apr. 15, 1999] (unpublished) (per Judge Talgam.)
24. CA 3031/99 Attorney-General v. Lubetzky [May 30, 1999] (unpublished) (per Judges S. Levine) [hereinafter Lubetzky judgment].
25. The Lubetzky judgment could be read as implicitly acknowledging the patient's right to have her prior wishes respected, including in regard to the discontinuation of life-support or life-extension procedures, so long as a sound evidentiary base has been established. For further discussion see text adjacent to note 41 and Section VI, infra.
26. Report of the Public Committee in the Matter of the Dying Patient (2002), http://www.health.gov.il/pages/defauh.asp?PageId=632&parentId=10&catId=6&maincat=l [hereinafterSteinberg Committee Report].
27. Dying Patient Law, Report of the Public Committee in the Matter of the Dying Patient, sec. 2. The relation between “quality of life” and “suffering” is not entirely clear. Besides section 1, quality of life is mentioned again once only-in the definition of “significant” suffering (s. 3). Otherwise, the substantive provisions of the Law refer only to suffering. “Significant” suffering is relevant to decisions regarding incompetent patients (ss. 16 and 17). “Suffering” as such (unqualified) is mentioned in a welcome innovation of the Law, which obliges physicians to relieve pain and suffering with palliative care, including for members of the patient's family (s. 23).
28. Id. 5ec. 55: “A dying patient is entitled, to the extent possible, that his will be respected in relation to additional actions which he requires, in his or his family's opinion, at his initiative and with his funding …” (emphasis added C.S.). The section continues to provide that the department head may refuse to allow said actions on the grounds of the medical institution, if, according to his opinion, they might endanger the patient or disturb other patients or the staff.
29. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions 36 (1919).
30. Ronald Dworkin, Taking Rights Seriously 172 (1977).
31. For a full exposition of this minority opinion contesting the prohibition of physician assisted suicide see Raphael Cohen-Almagor, The Right to Die with Dignity: An Argument in Ethics, Medicine, and Law (2001).
32. Hans Jonas, The Right to Die, in Bioethics 195, 196, 208 (T.A. Shannon ed., 1981).
33. Steinberg Committee Report, The Right to Die, in Bioethics, commentary to Section 13 of the committee's proposal for legislation.
34. Y. Michael Barilan, The New Israeli Law on the Care of the Terminally III, 50 Perspectives Biology & Medicine 557, 566 (2007).
35. The author does not necessarily support the right of patients to choose to withdraw artificial respiration. But in another article he cites a view which regards the technological solution as “the displacement of ethics by trickery.” See Y. Michael Barilan, Revisiting the Problem of Jewish Bioethics: The Case of Terminal Care, 13 Kennedy Inst. Ethics J.141, 155 (2003).
36. Carmel Shalev & David Chinitz, Joe Public v. The General Public-The Role of the Courts in Israeli Health Care Policy, 33 J. L., Medicine & Ethics 650 (2005).
37. Lubetzky judgment, Medicine & Ethics.
38. Steinberg Committee Report, Medicine & Ethics, commentary to s. 13 of the committee's proposal for legislation (translated C.S.). The term “human dignity” is used here interchangeably with the value of the sanctity of life (signifying the intrinsic value of life) rather than as the meta-norm of the human rights discourse.
39. David Casarett & Jeniffer Kapo & Arthur Caplan, Appropriate Use of Artificial Nutrition and Hydration-Fundamental Principles and Recommendations, 353 N.E.J. Medicine 2607 (2005).
40. For further administrative and procedural duties imposed on the “responsible physician,” see also the Dying Patient (Committees, Documents, Database and Reporting) Regulations, 2007, K.T. 186.
41. See K.T.
42. See K.T.
43. Extrapolating from the interpretation of similar language in Section 13(b) of the Patient's Rights Law, in relation to the “reasonable” communication of information as a prerequisite for informed consent, this should be read as referring to the needs of a “reasonable” patient rather than a doctor. See CA 3108/91 Reibi v. Veigel [1993] IsrSC 44(2) 497, 509. The essence of such information is to be documented in the form of the advanced directives (s. 33(b)(2)); but note that it is not clear what such information would amount to in the case of a generally healthy person.
44. See Lubetzky judgment, IsrSC.
45. The Da'aka case, IsrSC, at 572.
46. Basic Law: Human Dignity and Liberty, IsrSC, sects. 2, 4, & 7.
47. CA 413/80 Plonit v. Ploni [1981] IsrSC 35(3) 57, 89.
48. See text adjacent to IsrSC.
49. See, e.g., Noam J. Zohar, Alternatives in Jewish Bioethics 37 ff (1997)
50. Barilan, The New Israeli Law on the Care of the Terminally III. Alternatives in Jewish Bioethics.
51. Shai Lavi, Euthanasia and the Changing Ethics of the Deathbed, 4 Theoretical Inq. L. 729 (2003).
52. Giovanni Maciocia, The Foundations of Chinese Medicine (1989).
53. Sherwin B. Nuland, How We Die-Reflections on Life's Final Chapter 142–43, 221, 259 (1995).
54. Id. at 259.
55. Id. at 10, 80, 193.
56. Ecclesiastes 3:1–2.