Chapter 5 | Respecting the Patient’s Wishes

Rabbi Yuval Cherlow, Rabbi Uriel Ganzel, Rabbi Shaul Baruchi

Chapter 5 from the booklet The Halakhot of Treating a Terminally Ill Patient and a Patient Suffering From Dementia

1.The patient’s wishes1 are a central consideration in any decision regarding his treatment2. When a patient refuses treatment, we should listen to him, hear his reservations, and proceed in a manner that respects him and his wishes. When medical professionals determine that treatment will improve the patient’s condition, it is a great mitzvah to discuss it with the patient and try to convince him to accept treatment.

2.As a general rule, medical treatment should not be imposed on a patient whose life is not in life-threatening danger3.

3.A patient whose life is in danger must undergo medical treatment that has a high likelihood of success. If the success of the treatment is uncertain, the patient is permitted, though not obligated, to undergo treatment4.

4.In the case of a patient whose medical prognosis is that he cannot be saved, or that he will continue to suffer terribly, the decision to discontinue life-prolonging treatment and provide palliative care exclusively (supportive treatment that focuses on the patient’s quality of life and pain management), is subject to the patient’s personal preference5.

5.In the case of a patient whose life is in immediate life-threatening danger, and, in his desperate state he refuses to undergo treatment – although halakha mandates that he can be forced to accept treatment, this is prohibited by law, unless approval is granted by an ethics committee or the court6.

6.A patient whose life is in danger who refuses treatment based on rational considerations (such as fear of the risks posed by treatment, or concerns about his medical condition post-treatment), should not be compelled to undergo treatment even if the medical and halakhic consensus supports treatment. It is proper to try to persuade him to accept medical treatment7.

7. If a patient is not mentally fit to make decisions, we act in accordance with his wishes as expressed in his living will (see chapter XIX below), and through the methods specified by law, which include appointing a health care proxy8. In the absence of explicit instructions, we must proceed in accordance with how we assume he would want to be treated in this situation9.

8. Even in a case where the family does not have legal or halakhic status (such as when there is a guardianship order or continuing power of attorney), if the family members claim that they have no doubt that the patient would want treatment to stop, this should be seen as reflecting the patient’s wishes10.

9.For further discussion of respecting the patient’s wishes in the context of artificial feeding and the administration of medication, see chapters X-XI below.

10.With regard to patients who do not have the capacity to make medical decisions, such as someone with advanced dementia, see chapter XIII below.

הערת שוליים

  1. The Patient’s Rights Act establishes that “No medical care shall be given unless and until the patient has given his informed consent” (Patient’s Rights Act, 5756–1996, 4:13). However, the law also establishes that medical treatment can be administered to a patient against his will in a situation of life-threatening danger, with the approval of an ethics committee, under certain conditions, which include the assessment that the treatment will significantly improve the patient’s health and the conclusion that the patient would likely give retroactive consent to treatment (ibid. 40). For further discussion of the current situation in Israel, in both legislation and court rulings, see Amnon Carmi, “The Patient’s Consent to Medical Treatment,” Assia 3 (1982), pp. 295–315; Rabbi Mordechai Halperin, “Parental Objections to Operating on an Endangered Child,” Assia 8 (1995), pp. 19–31; Encyclopedia of Medicine and Halakha, vol. 2, “Informed Consent,” pp. 688–717.

    The Dying Patient Act establishes the parameters for treating a terminally ill patient and the way in which his wishes must be accounted for with respect to the treatment given. This law stipulates, among other things, that it is prohibited to do something that is intended to cause the patient’s death or that will almost certainly cause death, even if it is motivated by kindness and compassion and even at the patient’s request (Dying Patient Act, 5766–2005, 19–20).

  2. The question of whether a patient can make decisions with regard to his body, when this decision has the potential to shorten his life is, to a certain extent, related to an issue debated by the Aḥaronim: Does a person have ownership over his body? According to Shlomo Yosef Zevin (LeOr HaHalakha, from p. 318 onward; Halakha URefua, II (1981) from p. 93 onward), a person does not own his body. Rabbi Shaul Yisraeli (HaTorah UMedina, 5–6 (1963–1964) p. 106; Amud HaYemini, 16:5, from subsection 16 onward) disagrees, and claims that ownership of the body is shared. Indeed, it should be emphasized that even if halakha assumes that a person owns his own body, this does not necessarily imply that he may take his own life. The converse is true as well: Even one who maintains that God has absolute ownership over the human body, and “loans” life to man, might agree that He permits man to return the “loan” if man no longer wishes to live. See Rabbi Y. Cherlow, “Withholding Treatment from a Dying Baby Suffering from a ‘Group A Streptococcal Infection,’” Assia 85–6 (2009), p. 58; Encyclopedia of Medicine and Halakha, vol. 2, “Informed Consent,” pp. 673–74.
  3. The Gemara does not explicitly address the issue of imposing medical treatment upon a patient, but there is an indirect reference to this in the Tosefta (Shekalim 1:2), which implies that the accepted norm is to force a patient to accept medical treatment and even restrain him if necessary. The position of many Aḥaronim that a patient can be compelled to accept treatment is based on this Tosefta, though some limit the extent to which it can be applied. See Rabbi Mordechai Halperin, “Parental Objections to Operating on an Endangered Child,” Assia 8 (1995), p. 24; Rabbi Yitzchak Zilberstein, “Imposing Medical Treatment,” Yeshurun 13 (5763/2003), pp. 530–33. In the Encyclopedia of Medicine and Halakha, vol. 2, “Informed Consent,” the writer begins by saying (p. 670), that the idea that a patient must consent to treatment is a novel one that does not appear in halakhic literature. On pages 674–78 he links the principle of coercing a patient to receive medical treatment to the obligation to force someone to perform mitzvot. On the one hand, the obligation to force someone to keep mitzvot is based on a baraita in Ketubot 86a and Ḥullin 132b and is codified by poskim (see, e.g., Rambam’s Commentary on the Mishna, Ketubot 4:6) and therefore serves as an important source for coercing a patient to accept medical treatment. On the other hand, in practice we do not compel people to fulfill positive mitzvot nowadays.

    Poskim disagree as to whether the authority to coerce people to observe mitzvot is the prerogative of the court alone, or if each individual has the right to do so. See Ketzot HaḤoshen, 3:1; Netivot HaMishpat, ibid., 1; Meshovev Netivot, ibid. Rabbi Shilo Raphael, “Imposing Medical Treatment on a Patient,” Torah SheBe’al Peh, 33 [1992] pp. 74–81) writes that we may not coerce someone to receive treatment, since this requires a court of three judges, while other poskim who address the issue of imposing medical treatment (see footnote 50, below) do not require a court for this purpose; see the Shevet HaLevi, VIII 251:12.

    A responsum authored by Radbaz (IV, 67) is an important source for poskim who debate the issue of coercing a patient to accept medical treatment. Radbaz notes that if it has been determined that it is necessary to violate Shabbat for an ill person, and that individual, out of piety, does not want us to do so, we compel him to accept the decision. Rabbi Yaakov Emden in Mor UKetzia (Oraḥ Ḥayyim, 328) qualifies Radbaz’s statement, and explains that this only applies to a definite cure. However, if the patient is concerned that the treatment will not be useful, or will actually cause harm, especially if his claim is supported by a different doctor, he may refuse treatment. The opinion of the Mor UKetzia necessarily limits coercion, since in many cases it is not entirely clear what the outcome of treatment will be and the decision to undergo treatment rather reflects a balance between the risks involved and the potential for success. On the one hand, most poskim concur that medical treatment can be administered to a patient against his will while at the same time imposing many limitations as to how and when this can be done; see footnote 50 below.

  4. The basic and prevalent approach among poskim is that a patient who faces certain death is obligated to undergo medical treatment that is extremely likely to succeed, and he is permitted, though not obligated, to undergo treatment that is less likely to succeed. See Iggerot Moshe, Yoreh De’a, II:58; III:36; IV:24, 4; Ḥoshen Mishpat, II:74, 5. Compare to Aḥiezer, Yoreh De’a, 16:6.

    Two lines of reasoning support the first halakha, that obligates a patient to undergo medical treatment: Firstly, all medical treatment, by its very nature, entails an element of risk, and yet the Torah obligates us to undergo them (see Torat HaAdam, Inyan HaSakana [Chavel edition, pp. 41–3]). Secondly, when the potential for a long life (“ḥayyei olam”) imperils the patient’s short-term life (ḥayyei sha’a), we are not concerned about his ḥayyei sha’a (see Avoda Zara 26b, as quoted in the responsa cited above, as well as footnote 40, above). The rationale for the second halakha, which permits a patient to undergo medical treatment that may or may not succeed, is that when the success of the treatment is not predictable, the Torah leaves the decision to the patient’s discretion. However, this is not the case when the risk of death as a result of the treatment is high. And, if it is unclear if the risk of death as a result of the treatment is high, one should not endanger his life by undergoing risky medical treatment (see Binyan Av, 1:50), or at least it is clear that such treatment cannot be imposed upon a patient. See Tzitz Eliezer, IV:13; Nishmat Avraham, Yoreh De’a 155:2.

  5. See footnote 38, above. The halakhic basis for discontinuing life-prolonging treatment and choosing palliative care instead (which focuses on the patient’s quality of life) relies on principles that will be explained in detail below: (a) The halakha does not demand that life be prolonged in all cases, and there are situations in which there is no obligation to prolong life, and preference is given to treatments that reduce pain instead. See footnotes 56 and 63. (b) Each person can decide whether or not he will receive treatment. See footnotes 50 and 52. (c) Pain is one of the components of disease that require treatment. See below, footnotes 59–60, and 84. In addition, the fact that palliative care may also prolong life changes the picture. Though one life-prolonging treatment will be discontinued, a different treatment that also has the capacity to prolong the patient’s life will be administered instead.
  6. See the next footnote
  7. Poskim debate the extent to which medical treatment should be imposed on a patient. We cite the sources and discuss them only briefly here; for further discussion see the position paper, “Imposing Medical Care on a Patient” (

    • In footnote 46, we cite the opinion of Rabbi Shilo Raphael that nowadays it is not possible to compel a patient to receive treatment.
    • In contrast, Rabbi Eliezer Waldenberg (Tzitz Eliezer, XV:40; XVII:2) maintains that we can impose treatment in a life-threatening situation. This is also the opinion of RabbiShlomo Dichovsky, “Coercion, Examination, and Treatment: Halakhic Reflections on AIDS,” Assia 7 (1994), pp. 73–8), who mandates coercive medical treatment even when “the patient is not present before us.” In contrast, Rabbi Yitzchak Zilberstein contends that the obligation to impose treatment applies only in a case of clear and present danger (“Treating a Patient Against his Wishes,” Tzohar, 3 (1998), pp. 213–219; “Imposing Medical Treatment,” Yeshurun 13 (2003), pp. 530–33.)
    • Rabbi Moshe Feinstein (Iggerot Moshe, Ḥoshen Mishpat, II:73, 5; ibid. 74; Yoreh De’a, III:36; IV:24:4) rules that when a patient refuses treatment out of desperation and this is clearly an act of foolishness, we compel him to accept medical treatment. The same is true if all doctors agree that he should be treated. Surgery is somewhat different, insofar as it always involves a certain risk, and it is always unclear if it will be successful. If it is extremely likely that the surgery will be successful, we compel the patient to undergo surgery. If the possibility that the surgery will not succeed is equal to the potential for success, we do not compel him to undergo the surgery. Rabbi Feinstein notes that if the chances are evenly balanced, then “it stands to reason that if the patient is unwilling because he prefers the certainty of ḥayyei sha’a over the ambiguity of a longer life, he is permitted to refrain from seeking treatment” (See Iggerot Moshe, Yoreh De’a, III:36. It should be noted that in the responsum that appears in Part IV, Rabbi Feinstein uses the term “high likelihood”; see footnote 47, above). In that responsum, Rabbi Feinstein also writes that if the patient is afraid of having a physical blemish as a consequence of the operation, and the danger of forgoing the surgery is clear, we force him to undergo the procedure. Though he maintains that the patient should be forced to accept treatment in some of the above cases, Rabbi Feinstein reiterates in several of these responsa that there is often a concern that coercing the patient will harm him and his health, and therefore one must consider the matter carefully and refrain from treatment in the event of this concern.

    Rabbi Shlomo Zalman Auerbach rules that in a case where the doctors have determined that the patient’s leg should be amputated, but the patient does not want to undergo the surgery which will cause a physical blemish, he should not be forced to have the surgery, despite the consequent risk to his life and the fact that his life would be saved by the surgery. This opinion was attributed to him by Dr. Abraham S. Abraham (in Nishmat Avraham), in Yoreh De’a 155:2, and elsewhere. Rabbi S. Z. Auerbach (Minḥat Shlomo,I:91:24) also writes that it is permitted to refrain giving medication to a terminally ill patient who is suffering, if the patient demands this. But, if he is of sound mind it is proper to explain to him that “A single moment in this world [in repentance and good deeds] is greater [than all of the life of the World-to-Come,” Avot 4:17]. In both cases, Rabbi Shlomo Zalman Auerbach maintains that we do not compel a patient to receive medical treatment, despite the fact that halakha rules that it is proper to treat him. A similar position is adopted by Rabbi Shaul Yisraeli (BeMar’eh HaBazak, III:125, and footnote 651).

    In accordance with the rulings of Rabbi Moshe Feinstein and Rabbi S. Z. Auerbach, when there is no way to bridge the gap between what appears to be the patient’s best interest and the patient’s expressed wishes, the operative assumption is that the patient is permitted to refuse, though halakhic “judicial supervision” must be exercised. If the professional assessment is that the patient’s refusal to receive treatment stems from despair, and his arguments are worthless, it is halakhically permitted to force him to accept medical treatment, although Israeli law prohibits this (in the absence of the conditions mentioned earlier in footnote 44). If the patient’s decision stems from fear of the risks of treatment, doubt over whether the procedure will be successful, or concern about his condition after the treatment, his decision should be respected. Thus, in some cases the patient is indeed permitted to decide for himself, and even when his decision is halakhically prohibited, it must be respected.

  8. When there is no living will or a valid continuing power of attorney, and the patient is unable to make decisions, according to theLegal Capacity and Guardianship Law, 5722–1962, the court should be approached to appoint a guardian.
  9. In light of what we wrote in footnote 50, it seems that when the patient is unable to make decisions, or if his preference cannot be determined and he did not leave advance directives, we should try to assess what he would want and act accordingly. It is also likely that his family will best represent his wishes. This is what Rabbi Moshe Feinstein writes (Iggerot Moshe, Ḥoshen Mishpat, II:74, 2); see also Teshuvot VeHanhagot, III, end of 363. However, the Encyclopedia of Medicine and Halakha, (vol. 2, “Informed Consent,” pp. 685–86), cites Rabbi Yosef Shalom Elyashiv and Rabbi Moshe Halberstam who contend that when the patient’s wishes are not explicitly known, he should be treated, and the family members’ assumptions regarding his wishes based on what he wanted and said in the past should not be taken into account. Rabbi Avraham Steinberg writes there that “According to all opinions, he should not be operated on,” but as we have seen, this view is not unanimous.
  10. From a legal perspective, family members are not allowed to make medical decisions, though in practice doctors will consult family members to ascertain the patient’s preferences. For a discussion of the halakhic status of family members, see footnote 149.

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