When the patient is incapable of making decisions, relatives should have a say in the decision-making process it is necessary for family members to be informed of the situation, in order that their opinions and preferences be heard, and most importantly to learn from them what the patient’s wishes might be. From a legal perspective the opinions of family members may not be relevant¹, although standard practice is for doctors to consult family members, particularly in order to clarify the patient’s wishes in cases where the patient did not leave a continuing power of attorney or a living will.

For additional aspects of the status of family members from a general ethical perspective, see the footnote².

1. “The heart knows its own bitterness” (Proverbs 14:10). The patient comes before all others in deciding whether or not he should be treated³. When he is lucid, the opinions he expresses should be respected; when he is not able to articulate his wishes, those he has expressed in the past should be respected. In addition, the patient should be encouraged to give advance directives before he reaches a state in which he is unable to express his wishes.

2. The only relevant consideration when discussing whether or not to administer treatment should be the patient’s wellbeing and his wishes. No other factor should be taken into account, including potential benefit to others⁴.

3. In the case of a patient who is unable to make decisions, either because he is unconscious or not of sound mind, a determination should be made as to what he would want with regard to the treatment under consideration⁵.

4. In general, it is assumed that the immediate family is best able to represent the patient’s opinion and wishes. Accordingly, we presume that they want what is best for him, that they know him and what he would want, and it stands to reason that if the patient could be asked, he would authorize them to make a decision on his behalf⁶.

5. The concerns of the family members should be focused solely on the benefit and wishes of the patient. The desire for the patient to receive treatment in any situation and at any cost is not necessarily in his best interests. At times, such a position comes from relatives but does not represent the wishes of the patient or his wellbeing⁷.

6. When a disagreement arises between family members over the manner of treatment, they should keep in mind that they must find the proper way to settle the dispute between them, and that by doing so they are acting in accordance with the patient’s wishes and in his best interests⁸.

7. The professional staff should act on the basis of the assumption that the family represents the patient’s own position. At the same time, they must be aware that family members can have motives of their own, and when they perceive that the family’s opinion significantly conflicts with the interests of the patient, additional bodies (such as the hospital’s ethics committee) should be consulted and decisions should be made in a broader forum.

1. In Israel, the only legal status family members have is that when the patient’s wishes are unknown and a decision has to be made, the doctor must turn to the relatives to try to determine what the wishes of the patient were regarding receiving life-prolonging treatment before he lost his legal capacity. See the Dying Patient Act, 5766–2005, sections 5, 14.
2. For a discussion of the halakhic aspects of the status of family members, see footnote 149. The closer the degree of relation and involvement in the case, the greater the extent to which family members can be involved in medical decisions. However, although the family’s wishes are important, their decision making authority is not exclusive, as they may have additional concerns that are not always in the patient’s best interest, such as their desire to receive their inheritance or to rid themselves of the financial and emotional strains of caring for the patient. In other cases, the opposite might be true: They may want to try every possible means to keep the patient alive, because they want the assurance that “we did everything,” even if that is not in the best interests of the patient. When young children are the sick ones, the obvious and primary right of decision is reserved for parents, who are the natural guardians of their children, but even here, sometimes the stance of the parents must be opposed, when it is clear that they are thinking of themselves rather than the child. See Encyclopedia of Medicine and Halakha, vol. 2, “A Terminally Ill Patient (a),” pp. 239–41.
3. See chapter V, above.
4. In certain situations there are also concerns of the medical system that must be taken into consideration, such as preventing harm to others, or setting priorities of resource distribution in the case of a public health crisis such as an epidemic. See the position paper, “Allocating Means for Life-Saving Treatments in an Emergency,” on the Tzohar LaEtika website, https://bit.ly/3380NJI.
5. See chapter V above, subsections vii-x.
6. See the following footnote.
7. The halakha views family and the cultivation of relationships between relatives as something natural and important that occasionally overrides other values. Some examples include the preference for relatives in the mitzva of charity (Shulḥan Arukh, Yoreh De’a 251:3); the obligation to treat relatives with a special measure of affection (Yevamot 62b); the permission to give a relative advice in order to win a lawsuit or to gain money, even if in a normal case such advice would be prohibited or inappropriate (see Ketubot 52b and Baba Batra 174b; according to the passage in Baba Batra, this fulfills the verse: “And you shall not hide yourself from your own flesh” [Isaiah 58:7]); the permission to redeem captive relatives at an exorbitant price (this is the opinion of the Baḥ and the Shakh in Yoreh De’a 52, as opposed to the view of the Tur, ibid.); lastly, the disqualification of relatives from giving testimony is explained by the Abarbanel (Deuteronomy 24:16) on the grounds that is not in accordance with “natural justice” for someone to testify against his relative. See Rabbi Y. Cherlow, “From Familial Relations to National Identity,” Y.Z. Stern and B. Porat (eds.), Masa el HaAḥva, Jerusalem 2014, pp. 146–72.

   It should be emphasized that even when the patient is not of sound mind, and it is impossible to know whether he wants a particular course of treatment, the halakhic status of the family members is such that they do not have the authority to determine whether the patient will or will not be treated. See Melamed Lehoil, II:104 (“we do not find in the whole Torah that a father and mother have the right to endanger their children’s lives and to prevent the doctor from healing them”); Binyan Av, I:50; Rabbi Zalman Nehemiah Goldberg, “On Death: Responsa,” Sefer Assia11 (2018) p. 205; “Editor’s Note,” Sefer Assia 3 (1982) pp. 316–25 (the editor, Rabbi Avraham Steinberg, cites the position of Rabbi S. Z. Auerbach as an anonymous source); Rabbi Mordechai Halperin, “Parental Objections to Operating on an Endangered Child,” Assia 8 (1995), pp. 19–31; Rabbi Y. Cherlow, “Withholding Treatment from a Dying Baby Suffering from a ‘Group A Streptococcal Infection,’” Assia 85–6 (2009), pp. 48–62; Encyclopedia of Medicine and Halakha, vol. 2, “Informed Consent,” pp. 685–86.

   The above notwithstanding, there are some weighty arguments in support of the need for consultation with family members on the question of whether and how to treat a patient (the sources for these arguments appear in the above responsa and articles):

   • “The closer one is, the more precedence one gets” (see e.g., Kiddushin 21a) – relatives are the ones most directly responsible for the patient’s health, and the commandment to take care of him applies more to them than others, and it can be assumed that they are likely to most accurately determine what is beneficial for the patient (see the responsa of Rabbi Eliyahu Bakshi-Doron (Binyan Av) and the article by Rabbi Y. Cherlow).
   • We assume that the family members know the patient, and they may be more informed than others on his opinion and his wishes.
   • If we could ask the patient, he would likely choose his family members to represent him.
   • The responsibility of the family members toward the patient is also expressed by the fact that they will bear the consequences of the treatment and will continue to care for the patient afterward. Alongside the reservations with regard to introducing “future family suffering” as a decisive factor (see Rabbi M. Halperin, ibid., p. 30), this basic fact cannot be ignored, and simple logic requires us to address it despite the fact that we do not find reference to it in halakha.

   It is worth noting that there might be a discrepancy between these positions, since the first three focus on the patient’s wishes and wellbeing, while the fourth deals with the interests of the family. These do not always accord with one other, which can lead to serious dilemmas. The assumption that the family have the patient’s interest at heart is a reasonable one, but it is not an unequivocal fact, and it is possible that the family will not represent the patient faithfully. In addition, despite the assumption that the family knows the patient’s wishes best, that is often not the case.

8. This is a very common problem when the family is involved in making decisions, as the family may be divided internally regarding the appropriate course of action. There may be profound disagreements within the family stemming from different worldviews, religious attitudes, psychological factors and the like, which can make decision making by consensus impossible. Moreover, since the participants to the dispute are not concerned with their own interests (on which they could give ground) but with what everyone thinks is the best thing for the patient, this does not seem to be an issue open to compromise. Nevertheless, it is worthwhile to reach a consensus based on the following assumptions: (a) All family members want what is best for the patient; (b) no-one knows with absolute certainty what is in fact best for him, and it is always possible that the position of some other relative is preferable; (c) disputes between relatives often hurt the patient himself; (d) the family has to deal with the harsh reality, and quarrels weaken the family. Therefore, our advice is to find an approach that is agreeable to everyone, even if it takes a little time, as this will make it easier to deal with the difficult reality itself, and the family unity will be maintained in the long run. This is what we try to do when we receive inquiries at the Tzohar Ad 120 hotline.