Oftentimes we will be confronted with situations that challenge what the status of the family is in medical decision making, especially when the patient is unconscious or is not fit to make decisions independently. It is obvious that in cases where the patient is conscious and of sound mind, we are obligated to include him in the discussion of whether to treat his condition and how we do so. However, questions such as “is there a reason to treat a terminal patient?” generally arise when the patient is unconscious or in a diminished mental state. Regarding dementia patients, these questions are brought up when it becomes impossible to ask the patient what their wishes are. In the early stages of life, questions like this are present when dealing with premature infants and deciding whether and how to treat them. In cases like these, the accepted norm is to consult the relatives, even if there is no legal basis for this. This position paper will deal with the halachic and ethical tenants surrounding this discussion.
The issues dealt with in this position paper are very serious. Any small change in case details can change the conclusion, and therefore one should not decide the halacha directly from this paper. For practical advice, reach out to Tzohar’s call center at *9253
2. The Ethical Dilemma
Man is an autonomous entity. From this we can extrapolate that a patient with decision making capacity should be the ultimate decider of what will be done to him. The generally accepted ethical approach nowadays recognizes the right of a patient to refuse medical treatment, even if this refusal could cause him harm1. The law in Israel dictates, “Medical treatment shall not be administered unless informed consent has been given by the patient”2.When the patient lacks mental faculties, it is standard practice for the relatives to take part in the decision-making process, and one should definitely inform the family of the patient’s condition, hear their opinions, and most importantly learn what the patient’s thoughts and wishes would have been in the situation. The closer the relative is and the more the family members are involved in care, the greater amount of involvement they should have in making medical decisions. However, even though one should consider the family’s opinion, one should not follow it in all cases, for it is possible that they have additional considerations that are not always for the good of the patient, such as their wishes to receive an inheritance, their desire to rid themselves of the financial and mental burden of taking care of a sick person, or ideological differences between the patient and their relatives. Regarding young children, the natural right to make decisions is given to the parents, as they are their inherent guardians primarily involved in their upbringing and education and have the greatest interest in their wellbeing. Yet sometimes there are grounds to oppose the parental decision – when it is grossly understood that their decision is not for the good of their child but themselves3. From a legal perspective, there is no weight to the wishes and position of the family members of a patient4, but in practice doctors tend to consult with relatives regardless of the legal status.
3. The Jewish Position
3.1 The Status of the Family
Halacha sees family and maintaining a relationship between relatives as an important value that at times trumps other values. A few examples: The obligation of giving tzedakah falls first and foremost towards relatives and afterwards towards others; even amongst relatives, there is preference given to charity towards more closely related family members5. Man is obligated to have a special loving relationship with his family members6. One is permitted to give advice to his relatives in order to win a court case or a monetary settlement, even if this advice would be forbidden or inappropriate in a normal case7. Even though we do not redeem captives if the price is extraordinarily high, man is permitted to redeem his relatives at any price in the same manner as one may redeem themselves from captivity8.
Halacha thus views having a special bond with family as a natural principle of value9, and gives it preferential treatment over other social spheres. There is value in building a strong familial foundation and strengthening a relationship of love and responsibility towards one another10. This camaraderie and responsibility come into play at times of sickness as well, when naturally the relatives are the ones advocating for treatment of the patient.
3.2 The Halachic Status of Family in Decision Making
The ideas of autonomous choice to receive medical treatment and the authority to force treatment are relatively new concepts that are discussed in a very limited fashion in the Jewish sources. Elsewhere we have stated our position that even though the halachic basis is not extensive, the patient’s wishes are a significant component of the question of whether to treat and how, and it is almost impossible to force treatment on a patient that does not wish for it11.
So too, in cases where the patient is not of sound mind and one cannot discern if he would want the treatment or oppose it, the family members have no halachic status in this issue, and do not have the authority to determine whether the patient is treated or not12.
Even so, there are a number of significant proofs for the rationale to consult the family regarding whether and how to treat the patient:
- “Those closest to you come first” – relatives are directly responsible for the health of the patient, and are commanded to treat him more than others13. It is reasonable to assume that they are the ones who will express the greatest level of care for the patient’s wellbeing14.
- Family members are those who know the patient and tend to know better than others their opinions and wishes15.
- It is safe to assume that if we could ask the patient, he would choose his family members to represent him.
- The responsibility of the family towards the patient is expressed in that they are the one who will carry the burden of the treatment’s outcome and continue to assist the patient after the fact16.
It is worthwhile to note that a contradiction can exist between the different perspectives, as the first three deal with the patient’s wishes and the fourth with the wishes of the family and their wellbeing. Not always do these ideas fit with each other, and due to this we are faced with the moral dilemma; see later.
When discussing parents caring for their young children, the obligation of the parents and their responsibility to their offspring gives them authority to make medical decisions17.
3.3 Does the Family Always Represent What is Best for the Patient?
The basis for the family taking part in the medical decision-making process is the assumption that the family represents the best interests of the patient. Granted this is a reasonable assumption, but it is not unequivocally true, and it is possible the family will not accurately reflect the patient’s wishes. This can happen due to two opposing reasons. Firstly, the family naturally considers their own interests and the difficulty treating the patient alongside the futility in extending their life. Sometimes, this has opposite effects; the family is held back by the worry of feeling guilt over not doing everything for the patient, and can therefore demand treatments with no medical benefit. At times, one is obligated to allow the patient
to die in peace, and medical treatment of this patient can be practically abusive to the patient18. Additionally, even though the assumption is the family will know best what the will of the patient is, in many cases they do not know what he would want.
3.4 Disagreement Between Family Members
A very common practical issue is found when relying on the family to make an executive decision, in cases where the family itself disagrees regarding the best course of action. Oftentimes a deep disagreement arises within the family, due to different life perspectives, religious beliefs, psychological reasons, and more, and therefore makes it impossible to reach a conclusion. To make matters worse, since the participants in the discourse are not dealing with their own interests (which they can forego on) but what each of them views as what is best for the patient, it is seemingly impossible to find middle ground.
Even so, it is preferred to reach an agreement based on the following assumptions: 1) all the family members want what is best for the patient; 2) No one knows for certain what the best thing for the patient is, and it is possible that the other relative’s position is better; 3) the disagreement between relatives many times harms the patient himself; 4) the family needs to deal with the harsh reality, and disagreements weaken the family bond.
Therefore, the advised path is to find a treatment plan that everyone can agree upon, even if this matter will take some more time, thereby reducing the difficulty of dealing with this tough reality.
- Man is permitted to make decisions regarding his body, and as a general principle one should not impose medical treatment on him that he does not want.
- When a patient is unable to make decisions independently, whether due to lack of sanity or consciousness, one should assess what he would his position would have been regarding the treatment.
- Generally, the close family are the ones who can represent the patient’s wishes in the best manner. One may assume that they want what’s best for him more than anyone else, that they know him and his opinions, and it seems likely that if we could ask the patient, he would rely on them to make a decision.
- The consideration of the family must be for the good of the patient alone and nothing else. Even the desire to treat the patient at any cost is not necessarily for the good of the patient, and sometimes the hidden motivator is the worried conscience of the family.
- When there is a disagreement amongst family members about the best course of action, the best thing for the patient is for the family members to find a fitting method to mediate the conflict.
- The medical system must act under the assumption that the family represents the patient’s position. However, it must also be aware that families can be motivated by foreign beliefs, and when there is a suspicion that the family’s position is diametrically opposed to the patient’s wellbeing one should involve other authoritative bodies, such as the hospital ethics committee, and make decisions with a wider framework.
- We expanded on this in the position paper “Forced Medical Treatment”.
- The Patient’s Rights Law, 5756 – 1996, chapter 4, article 13.
- See The Medical Halachic Encyclopedia, volume 2, entry ‘Terminally Ill”, pages 239-241. Roi Gilber, ‘Family Involvement in the Process of Medical Decision Making Regarding a Legally Competent Adult Patient: Bioethical and Legal Perspectives”, Ma’aznei Mishpat, 13 (5780), page 43-78, deals with the question of family status when the patient can express their will, and he believes that even though the wishes of the patient are the deciding factor, one should listen to the family members and consider their position and preferences when making the final medical decision. This is due to the fact that without their cooperation, the patient will have difficulty implementing this decision into practice.
- The status of family members can be summarized such that in cases where the wishes of the patient are not known and a decision needs to be made, the physician should turn to the relatives in order to discern what the intentions of the patient would be regarding receiving life-prolonging care prior to losing their legal competence. See the Patient Nearing Death Act, 5766 – 2005, articles 5,13.
- Shulchan Aruch, Yoreh Deah, 251:3
- “He who loves his neighbors, brings his relatives closer, and marries his sister’s daughter… the pasuk says about him: “Then you will call, and God will answer, you will cry out and He will say ‘here I am’” (Yevamot 62b).
- In the discussion on Ketubot 52b it is told that Rabbi Yochanan gave advice to the relatives of orphans and subsequently rescinded his council. The Gemara explains that initially he thought that he was fulfilling the obligation of “do not ignore your own flesh”, but he reneged because a man of reputable status is not permitted to act this way. In the discussion on Bava Batra 174b, Abaya severely criticizes – and calls “an uncloaked evil” – one who seeks a way to win a monetary case that is lacking integrity yet halachically permissible, however in practice he instructs a man to act in this fashion for the sake of his son. The Gemara explains this by saying “one’s child is a different case”.
- The opinion of the Tur (Yoreh Deah, article 252) is that it is forbidden for man to redeem his relatives at an exorbitant price, but the Bach (ibid.) and the Shach (ibid., subarticle 4) rule that this is permitted.
- Rabbi Don Isaac Abarbanel (Commentary on Devarim 24:16) explains that the disqualification of relatives as witnesses in court is due to the inherent relationship between family members being a natural phenomenon, and therefore it would not follow “natural justice” for man to testify for his relative.
- See Rabbi Yuval Cherlow, ‘Family Brings One Closer to National Identity”, Yididya Z. Stern and Binyamin Porat (editors), Journey to Companionship (Hebrew), Jerusalem 5774, pages 146-172. It seems that the value of family is a significant and basic principle that does not need to be explicitly stated in halacha. See what we wrote regarding the values that are “fundamental axioms” in position paper – ‘The Obligation to Be Healed’, and endnote 16 there.
- See Melamed LeHo’il Responsa, volume 1, article 104 (“we do not find anywhere in the Torah that a father and mother have the right to risk the life of their children, and prevent the physician from healing”); Banav Av Responsa, volume 1, article 50; Rabbi Zalman Nechemia Goldberg, ‘Around Death: Responsa’, Assia Books, 11 (5768), page 205; ‘Editor’s Note’, Assia Books, 3 (5742), pages 316-325 (the editor, Rabbi Avraham Steinberg, anonymously brings the position of Rabbi Shlomo Zalman Auerbach); Rabbi Mordechai Halperin, ‘Parental Opposition to Surgery on Terminal Infants’, Assia Books, 8 (5755), pages 19-31; Rabbi Yuval Cherlow, ‘Withholding Treatment in Terminally Ill Infants Infected with Invasive Bacteria’ Assia, 85-86 (5769), page 48-62; The Medical Halachic Encyclopedia, volume 2, entry ‘Informed Consent’, page 685-686.
- See Binyan Av Responsa (previous endnote). Rabbi Eliyahu Bakshi-Doron emphasizes that the opinion of the family members is not authoritative, but they are obligated to shed light on the situation.
- See Rabbi Yuval Cherlow, ‘Withholding Treatment in Terminally Ill Infants Infected with Invasive Bacteria’ (earlier endnote 12), page 60.
- See the papers cited in endnote 12.
- See Rabbi Mordechai Halperin (earlier endnote 12), page 30, who describes as “horror inducing” the claims of parents regarding the future burden on the family. To contrast, see Rabbi Yuval Cherlow (earlier endnote 12). There we have expressed our opinion that one cannot ignore this basic fact, and honest reasoning requires accounting for this, even if it has no halachic basis.
- Rabbi Mordechai Halperin’s (ibid., pages 26-27) opinion is that guarantors have no halachic authority over decisions relating to the body. In our aforementioned paper, (page 61) we disagree with his opinion. Just like in many other matters, the parents make decisions for their children, so too in medical care, and just like they are obligated to circumcise their sons so too they are obligated in the mitzvah of saving their life.
- See position papers – ‘Treating a Patient with No Chance of Recovery’, ‘The Impact of Suffering on Medical and Halachic Considerations’
- See position papers – ‘Treating a Patient with No Chance of Recovery’, ‘The Impact of Suffering on Medical and Halachic Considerations’.