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/special/eng/basic3_eng.htm. 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 (halakha). 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.

³ Dying Patient Law, supra note 1, sec. 9.

⁴ In addition, the Law makes specific provisions for decision making processes in the cases of minors and other persons lacking general legal capacity (wards). However, these matters lie beyond the scope of the present Article, which focuses on illness and death from aging.

⁵ Patient Rights Law, 1996, S.H. 729.

⁶ Shapira, Amos, Informed Consent to Medical Treatment—Positive and Normative Law, 14 Iyunei Mishpat 242 (1989)Google Scholar [in Hebrew].

⁷ Berlin, Isaiah, Two Concepts of Liberty, in Four Essays on Liberty 131 (1969)Google Scholar.

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 It is quite clear that the position of the medical profession in Israel regarding end-of-life care is conservative in comparison with other countries with developed medical systems. For example, the issue of the high costs of end-of-life care or the “futility” of medical treatment was never entertained seriously in the Israeli public discourse. There could be many reasons for this conservatism. It might be related to fear of criminal prosecution for the unlawful taking of life, although there is no precedent for this, and it was unlikely that a criminal complaint would follow from acquiescing to the wishes of a patient. It is possible that the profession's position was influenced by the Shefer decision (supra note 2), and a result of the increasing informal influence of halakhic authority in medical ethics. The bias toward prolonging life might also be related to a general propensity to use technology, and particularly in the area of health care. In addition, it could be the case that this stance reflected an interest in maintaining professional control over end-of-life medical decisions while resisting the empowerment of patients to make their own decisions. These and other factors at play would merit a cultural study that is far beyond the scope of this Article.

¹³ In a previous article I gave a detailed analysis of the case law preceding the enactment of the Dying Patient Law, 2005. See Shalev, Carmel, Paternalism and Autonomy in End-of-Life Decision-making: The Israeli Normative Ambivalence, 29 Isr. Y.B. Hum. Rts. 121 (1999)Google Scholar.

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 further explanation of this view, see Camel Shalev, Paternalism and Autonomy in End-of-Life Decision-making, id. at 127, and the discussion infra Section III(A).

¹⁵ OM (TA) 2349/95 Itai Arad v. Klalit Sick Fund [1996] IsrDC 55(2) 253.

¹⁶ OM (TA) 401/98 Meir v. Attorney-General (unpublished).

¹⁷ OM (TA) 759/92 Zadok v. Beit Ha'Elah [1992] IsrDC 52(2) 485.

¹⁸ Shefer case, supra note 2; and LCA 5587/97 Attorney-General v. Ben Ikar [1997] IsrSC 51(4) 830 [hereinafter Ben Ikar].

¹⁹ Shefer case, supra note 2.

²⁰ The ambiguity on this point is related to the meaning of the halakhic tenet of “removing the hindrance” (hassarat ha‘monei’a) to the natural course of the dying process, which is an exception to the duty to preserve life.

²¹ The case could have been settled on the simple principle that both parents' consent is required for discontinuation of treatment in a minor child.

²² Ben Ikar case, supra note 18.

²³ SM (TA) 10403/99 Lubetzky v. Clalit Sick Fund [Apr. 15, 1999] (unpublished) (per Judge Talgam.); CA 3031/99 Attorney-General v. Lubetzky [May 30, 1999] (unpublished) (per Judges S. Levine) [hereinafter Lubetzky judgment].

²⁴ 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.

²⁵ Report of the Public Committee in the Matter of the Dying Patient (2002), http://www.health.gov.il/pages/default.asp?PageId=632[hereinafterSteinbergCommitteeReport].

²⁶ Dying Patient Law, supra note 1, 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).

²⁷ Id. sec. 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.

²⁸ Hohfeld, Wesley Newcomb, Fundamental Legal Conceptions 36 (1919)Google Scholar.

²⁹ Dworkin, Ronald, Taking Rights Seriously 172 (1977)Google Scholar.

³⁰ Section 19 is entitled “prohibition of active killing” and forbids actions that hasten death; for example, administering a lethal drug. It states that nothing in the Law may be construed to permit any action, including medical treatment, that is intended to kill or that is almost certain to cause death, even if performed out of mercy and compassion and at the request of the dying patient. Section 20 uses almost identical language to prohibit any action that amounts to assisting suicide; for example, prescribing a lethal drug that the patient takes by him or herself. But note that both these provisions should be read together with Section 23, which clarifies that palliative care for the relief of pain may be administered even if it would entail “reasonable risk to the life of the patient.”

³¹ For a full exposition of this minority opinion contesting the prohibition of physician assisted suicide see Cohen-Almagor, Raphael, The Right to Die with Dignity: An Argument in Ethics, Medicine, and Law (2001)Google Scholar.

³² Jonas, Hans, The Right to Die, in Bioethics 195, 196, 208 (Shannon, T.A. ed., 1981)Google Scholar.

³³ Steinberg Committee Report, supra note 25, commentary to Section 13 of the committee's proposal for legislation.

³⁴ Barilan, Y. Michael, The New Israeli Law on the Care of the Terminally Ill, 50 Perspectives Biology & Medicine 557, 566 (2007)CrossRefGoogle ScholarPubMed. 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 Barilan, Y. Michael, Revisiting the Problem of Jewish Bioethics: The Case of Terminal Care, 13 Kennedy Inst. Ethics J. 141, 155 (2003)CrossRefGoogle ScholarPubMed.

³⁵ Shalev, Carmel & Chinitz, David, Joe Public v. The General Public—The Role of the Courts in Israeli Health Care Policy, 33 J. L., Medicine & Ethics 650 (2005)CrossRefGoogle Scholar.

³⁶ Forms for both advance directives and appointment of proxy are attached as appendices to the Law, with almost identical content, both substantive and procedural. (This is why I generally refer to both as “advance directives,” as a matter of convenience). Patients may sign both forms, in which case they might indicate which overrides the other in the event of any contradiction or conflict (s. 42).

³⁷ The presumption can be rebutted by virtue of advance directives, the appointment of a proxy decision maker, or the decision of an institutional (or national) committee constituted under the Law to resolve matters of dispute. Under Section 5(c), it might also be rebutted by the declaration of a close person or the position of a guardian that the patient does not want to continue living.

³⁸ The definition includes “tests, surgical operations, resuscitation, connection to artificial aspiration, chemotherapy treatments, radiation and dialysis” (s. 16(a)).

³⁹ I.e., an incompetent patient whose suffering is significant and as to whom the presumption of the wish to live has been rebutted.

⁴⁰ I.e., the presumption of the wish to live has been rebutted, by virtue of advance directives, the appointment of a proxy decision maker, or the decision of an institutional or national committee.

⁴¹ Lubetzky judgment, supra note 23.

⁴² Steinberg Committee Report, supra note 25, 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.

⁴³ Casarett, David & Kapo, Jeniffer & Caplan, Arthur, Appropriate Use of Artificia1 Nutrition and Hydration—Fundamental Principles and Recommendations, 353 N.E.J. Medicine 2607 (2005)CrossRefGoogle ScholarPubMed.

⁴⁴ Id.

⁴⁵ Section 8(b) of the Law defines the “terminal stage” as “a medical condition in which several vital bodily systems are failing and life expectancy is no more than two weeks, even if medical treatment were to be administered.”

⁴⁶ Section 17 sets forth the parameters of the physician's discretion: artificial hydration may be withheld if it would cause the patient suffering or harm. Note that the form for advance directives in the Appendix asks for instructions on this point; but even though the patient may have determined that the need for artificial hydration would amount to “significant suffering,” she has no power to make advance directives to withhold such treatment at any stage, and it still remains in the discretion of the “responsible physician.”

⁴⁷ The “responsible physician” is defined as the director of the hospital department or unit responsible for the medical care of the patient, or an expert physician appointed by the hospital director, or by a director of a department or unit to be responsible for all patients in the hospital. If the patient is not hospitalized, the “responsible physician” will be the “district physician” of the health fund in which the patient is a member under the National Health Insurance Law, or a doctor appointed by him or her (s. 3). In other words, it is not purportedly possible to evade the grip of the Law by remaining a resident in the community, even if one wishes to go peacefully through the dying process at home.

⁴⁸ As mentioned above, this determination is relevant to decisions about the withholding of “accompanying treatment” from incompetent patients (s. 17).

⁴⁹ The Law makes a statutory presumption that patients are competent (s. 6), unless determined otherwise by the “responsible physician” on the basis of a reasoned and documented medical decision, after consulting the patient's caregivers and other relevant or expert doctors (s.7).

⁵⁰ In the absence of advance directives, a proxy decision maker, or the decision of an institutional or national committee.

⁵¹ The “close person” may or may not be a family member. He or she may be consulted in the absence of a guardian or proxy to rebut the presumption of the will to live (s. 5(c)), to determine whether it is the will of an incompetent patient to receive exceptional life extending treatment (s. 14(c)), and also to resolve conflicts between advance directives and a letter of appointment of a proxy decision maker (s. 35). The “close person” also has standing to address the institutional committee (s. 46).

⁵² 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.

⁵³ See supra note 46.

⁵⁴ See supra Section I(B).

⁵⁵ 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.

⁵⁶ A reminder will be sent to renew the directives towards the end of that period (s. 44).

⁵⁷ Similar provisions are made as regards the appointment of proxy decision maker. The only significant difference between the two is that advance directives given in a form that does not comply with the formal requirements may be taken into consideration in assessing the patient's wishes so as to rebut the presumption of “the will to live” or to ascertain whether she wishes to receive “exceptional” life extending treatment (s. 34(b)), while there is no similar provision for the appointment of a proxy.

⁵⁸ If the patient has not filled this form, the Law attempts to define “significant suffering” objectively, as “pain or suffering, which a reasonable person would be prepared to make considerable effort so as to avoid or remove, even if this would entail significant harm to his quality of life or life expectancy” (s. 3).

⁵⁹ The difference between the two lists is that questions about the administration of antibiotics and blood products, insulin, and artificial nutrition and hydration, are presented only for the “terminal stage” while they are not optional for a “dying patient.” This expresses the legal artifice of “accompanying treatment” which may be withheld from “terminal stage” patients but may not be withheld from “dying patients,” but it is unlikely that the lay person will be cognizant of this distinction.

⁶⁰ It should be noted, though, that there is a question whether this amounts to informed consent to participate in a medical experiment. Obviously no specific information can be given about the purpose of a future and as yet unknown experiment, or of what participation entails, which would normally be required.

⁶¹ See Lubetzky judgment, supra note 23.

⁶² The Da'aka case, supra note 9, at 572.

⁶³ Basic Law: Human Dignity and Liberty, supra note 2, sects. 2, 4, & 7.

⁶⁴ CA 413/80 Ploni, Plonit v. [1981] IsrSC 35(3) 57, 89Google Scholar.

⁶⁵ See text adjacent to supra note 7.

⁶⁶ See, e.g., Zohar, Noam J., Alternatives in Jewish Bioethics 37 ff (1997)Google Scholar; Barilan, The New Israeli Law on the Care of the Terminally Ill, supra note 34.

⁶⁷ Lavi, Shai, Euthanasia and the Changing Ethics of the Deathbed, 4 Theoretical Inq L. 729 (2003)Google Scholar.

⁶⁸ Maciocia, Giovanni, The Foundations of Chinese Medicine (1989)Google Scholar.

⁶⁹ Nuland, Sherwin B., How We Die—Reflections on Life's Final Chapter 142–43, 221, 259 (1995)Google Scholar.

⁷⁰ Id. at 259.

⁷¹ Id. at 10, 80, 193.

⁷² Ecclesiastes 3: 1-2.