Many factors could bring a patient to refuse medical treatment offered to them. There are patients who have given up hope regarding their condition and who do not desire intervention, potentially even in denial about the possibility of death. Some might even prefer death over their life of suffering. There are patients who claim that they have faith in God and therefore do not need medical intervention. There are people who worry about the risks of the offered procedures or do not trust the doctor. Others worry that perhaps the treatment won’t achieve the desired result, while some may worry that the result of the treatment itself will guarantee a life of suffering. Patients may express their opinion in the moment or as an advance directive. All this begs the question: can one force medical care on a patient when the medical system believes that there is a vital need for the procedure, but the patient refuses to accept it?
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
When man refuses to accept medical treatment, yet according to the medical system’s evaluation there is an essential need for the procedure, we are faced with a clash between the inherent value of life and the value of autonomy. The inherent value of life ranks highly in the hierarchy of mankind’s ethics, and demands placing priority on conserving human life against any dangers that befall it. Committing to this value requires administering medical care to the patient. On the other hand, there is the value of autonomy, which states that man is a unique entity, owner of his own body and able to make decisions relating to it independently. Thus, a man of sound mind may decide whether he is treated and how he should be treated, as long as it does not cause harm to others in the process.
This dilemma arises in its most extreme form regarding suicide – centered around the question of whether we are obligated to prevent someone from committing suicide or whether part of their autonomy includes deciding what is best for themselves. According to the opinions of those advocating for total autonomy of the individual, it is man’s total right to decide when and how to end his life. Less extreme opinions limit this by following the values of goodness and kindness, stipulating that suicide is permitted when the benefit of the individual’s death would be better than sustained life. To contrast, some hold that the value of autonomy does not allow for suicide for a number of reasons: 1) suicide contradicts the main principle of autonomy, which assumes that man is doing what is best for himself and is able to define what goodness is. Suicide is an erasure of man’s existence and his ability to decide what is best for himself, and therefore it contradicts the main purpose of autonomy. 2) Suicide does not just hurt the person committing it but also his family and acquaintances, therefore this is not an exclusively autonomous decision. 3) The decision to commit suicide is not autonomous inherently, for in many cases it is derived from psychiatric conditions, emotional impulses, or secondary psychological needs that are meant to direct attention to a specific problem. Since one can add to the mix that a suicidal person may be considered a halachic “Shoteh” (mentally incompetent), i.e. that they have been possessed with a pathological feeling of hopelessness and insanity not reflecting their true desire, it is easier to determine that other people are obligated to prevent it. Already in Greek times there was much controversy surrounding this issue between the Epicureans, the Stoics, and Socrates and his disciples1.
In the past, the patient-doctor relationship largely followed the paternalistic approach, where the physician was considered to know what is best for the patient and should therefore be the decider regarding medical treatment. However, beginning in the second half of the 20th century, the autonomous approach began to gain ground in the medical field. The generally accepted ethical approach today recognizes the right of the patient to refuse medical treatment, even if this refusal could harm him. Alongside this the community strives to find a balance between these values, placing an emphasis on the patient’s right to autonomy without losing the professional opinion of the doctor and his responsibility towards his patient. The level of balance between these values can fluctuate between societies and therefore the healthcare policies differ from country to country2.
In Israel, the Patient’s Rights Law states that “anyone who requires medical treatment has the right to receive it”33, yet the law also lays the ground for forcing medical treatment in cases of severe risk, with the approval of the ethics committee, on condition that the treatment is expected to markedly improve the condition of the patient and that there is a reasonable basis for assuming the patient would approve of this treatment in retrospect44. The Dying Patient Act stipulates that it is prohibited to perform a procedure that is meant to euthanize or could almost surely lead to the death of the patient, even if it is done out of compassion and even if 5explicitly requested by the patient.
3. The Jewish Position
3.1 The Sanctity of Life and the Obligation to Preserve a Life
Sanctity of life is a tremendous and lofty value. Chazal expounded the verse, “’And you should live by them’ – and not die by them” (Yoma 85b), and taught that the majority of mitzvot are pushed aside for pikuach nefesh. The Gemara (ibid. side a) states that it is obvious that even for incurable maladies and the terminally ill do we violate the Sabbath6. From these sources we see that the inherent value of life is indeed lofty, but it does not trump all. Life’s inherent value mandates maintaining a healthy lifestyle, and therefore one who is sick is commanded to seek out treatment, and medical professionals are commanded to heal him77. The obligation to preserve life includes a prohibition against suicide as well8.
3.2 Man’s Ownership Over His Body
The debate over whether a patient can make decisions regarding his body which may shorten his life touches on a question that divided the Achronim: does man have ownership over his own body9? The debate around these issues is twofold: 1) Is man permitted to make decisions regarding his body even in cases where they are damaging to his health? 2) Is it permissible for an external entity to force medical care on someone even if he does not wish it?
To answer the first question, one should note that even according to those who hold that man does have
ownership over his body, this refers to partial ownership with God and does not grant the right to cause oneself bodily harm. However, the usage of this claim as a halachic consideration requires determining to what extent we are discussing man’s failure of accomplishing his responsibilities towards his body and in what situations is the owner of his body (God) demanding its return without man being responsible to fight for his life10? Regarding the second question, one can say that even if man does not have total control over his body, he is in more control than any other external force.
We did not find an explicit source in the Gemara related to whether one may force medical care on a patient11, but this matter is dealt with indirectly in the Tosefta (Shekalim 1:6) when explaining the involuntary aspect of the mitzvah of giving half a shekel (Machatzit Hashekel):
It is comparable to one who has a wound on his leg and a doctor forcibly incises his flesh in order to heal him. So too the Holy One Blessed Be He says: Israel should offer up their shekalim as collateral so that the public offerings be brought from them, for the public offerings appease and atone between Israel and their Father in heaven.
According to the Tosefta, the accepted norm was that medical treatment is given without the patient’s consent, and if necessary one could even bind their patient in order to perform the procedure12.
Opposing the permissibility (or obligation) of involuntary treatment is the value of autonomy. As stated previously, forcing medical care is almost unaddressed in past sources, but the value of autonomy is even more extant in these texts and there is no clear source in the Torah or the works of Chazal. Elsewhere13, we brought up the possibility that the lack of sources for this value does not necessarily mean that it doesn’t exist, but that Chazal viewed it as a sort of “axiom” acting as the basis for debate14. This value can be derived from the concept of “the image of God”15 and its implications on free will, or can be learned from the serious prohibition of “he who kidnaps a man and sells him”16, from the significant limitations placed by the Torah on servitude17, and from the harsh criticism – in the Nevi’im and later books of Tanach – on certain eras where a culture of slavery was embraced and for the lack of societal intervention18. It seems that this is the reason that discussions by poskim regarding involuntary medical treatment deal almost exclusively with patients in life-threatening condition19.
3.5 The Balance Between Using Force and Autonomy
How should we balance these values – the obligation of the patient to be healed and the obligation to save others – with the principle of autonomy? First of all, it is proper to dispel this tension using softer methods – speaking emphatically to the patient in an effort to convince him, making the treatment accessible and simple, and even to apply pressure – in order to prevent reaching a conflict between what seems best for the patient and their wishes.
When there is no way to mediate this gap, the standard is that a patient is permitted to refuse treatment, but one should use a considerable amount of ‘critical analysis’. If it seems like the patient’s refusal to accept treatment comes from a lack of will to live and their claims are fundamentally baseless, one can forcibly administer treatment from a halachic perspective. It is important to emphasize that the State of Israel prohibits this legally unless the conditions stated above have been fulfilled20. If we are discussing a case where the patient has come to a decision due to a worry about the risks, doubt about the treatment’s success, or a worry about his condition after the procedure – one should honor his request. In certain cases, the patient is allowed to decide for himself, and even if the decision is halachically prohibited – one should honor the request21.
The most common cases where a patient refuses medical treatment that raise difficult questions are cases where there is belief that the patient is unable to see the bigger picture or decisions regarding psychiatric conditions. In these cases, there is an obligation, both legally and halachically, to consult relevant authorities in the field.
- Man is obligated to maintain his health and his life, accepting medical treatment when necessary.
- All people are obligated to help someone in distress and save them. A physician is obligated to heal the patient and prolong life.
- When a patient refuses to accept medical care, it is a great mitzvah to speak emphatically and convince him to accept the treatment.
- One should not force medical treatment on a patient who is not in a life-threatening condition.
- Regarding a patient who is in a life-threatening condition and refuses to accept medical treatment, and his rationale is based on reason (worries about risk of the procedure, his condition after the procedure is performed, etc.), one should not force treatment on him even if the doctors and halachic opinions believe that there is a need for treatment.
- See The Medical Halachic Encyclopedia, volume 2, entry ‘One Who Commits Suicide’, pages 52-55; David Heyd, Ethics and Medicine, Tel Aviv 5750, pages 30 onward.
- See The Medical Halachic Encyclopedia, volume 7, entry ‘The Doctrine of General Morality’, pages 890-946, primarily 932-936; ibid., volume 2, entry ‘Informed Consent’, pages 633-717, primarily 636-641; ibid. volume 3, entry ‘Patient’, pages 460-462; Daniel Sinclair, ‘Patient Autonomy, Judaism, and Democracy in the Patient Nearing Death Act’, 5766-2005, HaMishpat, 21(5776), pages 224-229. On these pages the author summarizes the discussion of patient autonomy in Anglo-American law; further on in the paper he considers the status of autonomy within halacha. For additional sources see position paper ‘The Impact of Suffering on Medical and Halachic Considerations’, endnote 1.
- The Patient’s Rights Law, 5756-1996, chapter 4, article 13.
- Ibid. article 15. Regarding the status in Israel, in law and halachic ruling, see: Amnon Carmi, ‘Patient Consent to Medical Treatment’, Assia Books, 3 (5742), pages 295-315; Rabbi Mordechai Halperin, ‘Parental Resistance to Surgery for a Critically Ill Infant’, Assia Books, 8 (5745), pages 19-31; The Medical Halachic Encyclopedia, volume 2, entry ‘Informed Consent’, pages 688-717.
- The Patient’s Rights Law, 5756-1996, articles 19-20.
- This is the halachic ruling of the Shulchan Aruch as well, Orach Chayim, 329:4.
- Shulchan Aruch, Yoreh Deah, 336:1. See an extensive discussion in the position paper ‘The Obligation to be Healed’. In other places we dealt with issues limiting this obligation, in situations of great suffering or when there is no chance of recovery (see position papers – ‘The Impact of Suffering on Medical and Halachic Considerations’, ‘Treating a Patient with No Chance of Recovery’). To summarize, in a place where there is no obligation to prolong life, it is not possible to force treatment. Our central discussion here surrounds the issue of involuntary treatment when there is such obligation.
- Mishneh Torah, Hilchot Rotze’ach VeShmirat HaNefesh, chapter 2, halacha 2. Regarding the question of whether the prohibition of suicide applies in cases of tremendous suffering, see: Yabia Omer Responsa, Yoreh Deah, volume 2, article 24; Tzitz Eliezer Responsa, volume 5, Ramat Rachel, article 25; Rabbi Amit Kola, ‘Proposed Legislation “Physician-Assisted Euthanasia” From a Halachic Perspective’, Tchumin, 37 (5777), pages 113-126; The Medical Halachic Encyclopedia, volume 2, entry ‘One Who Commits Suicide’, pages 47-49.
- According to Rabbi Shlomo Yosef Zevin (In Light of Halacha, pages 318 onwards; ibid., Halacha and Medicine, 2 , pages 93 onwards), man does not have ownership over his body. Rabbi Shaul Yisraeli (The Torah and the State, 5-6 [5713-5714], page 106; ibid., Amud HaYemini, article 16:16 onwards) disagrees and believes that there is dual ownership with God. See The Medical Halachic Encyclopedia, volume 2, entry ‘Informed Consent’, pages 673-674. Even if man does not have ownership over his body, it seems that he is permitted to make decisions relating to his body and his life, provided that these decisions follow Torah law. See Rabbi Yuval Cherlow, ‘Withholding Treatment in Terminally Ill Infants Infected with Invasive Bacteria’ Assia, 85-86 (5769), page 58.
- See the position papers referenced earlier in endnote 7.
- See The Medical Halachic Encyclopedia, volume 2, entry ‘Informed Consent’. On page 670 the author begins by stating that consent for treatment is a new concept not found in past halachic works. On pages 674-678 he anchors the foundation of involuntary medical treatment on the enforcement of observing the mitzvot. This basis on the enforcement of the obligation of mitzvot offers a significant foundation for coercion, which is based on the baraita on Ketubot 86a and Chullin 132b, and is generally accepted by the poskim (see for example The Rambam’s Commentary on the Mishnah, Ketubot 4:6); but nowadays we do not force man to perform positive commandments (see for example Maharam Mintz Responsa, article 101; Amud HaYemini, article 10:6. For additional discourse see A. Shuchtman, ‘Regarding Coercion to Keep Mitzvot’, Parshat HaShavua, edition 311 ). The poskim disagree regarding whether the authority to enforce mitzvot is given only to the courts or to each individual. See: Ketzot HaChoshen, article 3:1; Netivot HaMishpat, ibid., 1; Meshovav Netivot, ibid. Rabbi Shilo Raphael (‘Forcing Medical Treatment on a Patient’, Torah Sheba’al Peh, 33 , pages 74-81) writes that one should not force medical treatment due to the requirement of a beit din of 3 judges, with a possible need for experts (he adds to this the rationale that there are those who rely on the opinion of the Ramban, who holds that there is no obligation to be healed, and man is the owner of his body. Compare this to Rabbi Naftali Bar-Ilan and Dr. Yechiel Bar-Ilan, ‘Involuntary Medical Treatment’, Tchumin, 25 , pages 25-26, who reject his opinion). The rest of the poskim that deal with involuntary treatment (see elsewhere) do not require a beit din for coercion. See Shevet Levi Responsa, volume 8, article 251:12 (The responsa is from Rabbi Wosner, published at the beginning of volume 3 of The Medical Halachic Encyclopedia). Rabbi Wosner writes initially that coercion is “via beit din, under the advisal of a physician”, and in the response to the question of Rabbi A. Steinberg he explains that his intentions by the words “beit din” are Da’at Torah, and there is no requirement for a beit din of three judges.
- In the Radbaz’s Responsa (volume 4, article 67), we found that a patient that is evaluated to require an act violating the Sabbath yet refuses to allow us to do so due to his piety should be forced to accept this treatment. His opinion is brought up in the Pitchei Teshuva, Yoreh Deah, article 155:4 as well as the Magen Avraham, Orach Chayim, article 328:6. The Mor VeKetziah (Orach Chayim, article 328) qualifies the opinion of the Radbaz and writes that this was written when dealing with definitive treatment plans specifically, but if the patient is worried that treatment will not be effective or may be harmful, and surely if a second opinion from a physician supports his thoughts, the patient is permitted to abstain from treatment. The Mor VeKetziah’s words allow for constriction of the circumstances allowing coercion, since in many cases the decision to perform medical procedures is not definitive, but an evaluation of risks on both sides. Thus, the accepted opinion amongst poskim is that one is able to force medical treatment; yet the limitations placed on this by the poskim are many, see elsewhere. The Tosefta in Mesechet Shekalim is the foundation of the Achronim’s words, and those brought later in endnote 21, for forcing treatment, but there are those who limit the extent of the coercion learned from it. Rabbi Mordechai Halperin (‘Parental Resistance to Surgery for a Critically Ill Infant’, Assia Books, 8 (5745), pages 24) writes that the proof is that one is allowed to force treatment on a patient under the assumption that the patient will agree with the physician in the end that there was a need for treatment. However, if it is clear that the patient will suffer after the treatment as well and will not retroactively agree to this – there is no heter to force treatment. Rabbi Yitzchok Zilberstein (‘Forcing Medical Treatment’, Yeshurun 13 , pages 530-533) writes that coercion is permitted only in acutely hazardous settings – “for encroaching on the individual’s abilities and involving oneself in his personal matters against his will can only be done in the way stipulated in the Tosefta, chapter 1 of Shekalim”, I.e. when there is an immediate threat.
- See position papers – ‘Forcing Drug Administration on High-Risk Sex Offenders’, and ‘Placing Sanctions on Anti-Vaxxers’.
- Regarding the existence and halachic importance of fundamental principles not explicitly stated in the Torah, some of which are derived from natural morality, see position paper ‘The Obligation to be Healed’, article 3.7 and endnote 16.
- See Rabbi Yehuda Brandes, Judaism and Human Rights: From the Image of God to Holy Nation, Jerusalem 5773, chapter 7 (the author relies mainly on similar sources to those quoted later, but relates them to the concept of ‘The Image of God’ as well).
- Shemot 21:17. This action is so severe that its standard penalty, under the right conditions, is death (ibid.; see as well the Mishneh Torah, Hilchot Gneiva, chapter 9, halachot 1-6).
- Shemot 21:1-11; Devarim 15:12-18. Regarding the purpose of these limitations and their relationship to hindering the concepts of the Image of God and autonomy of man, see for example Rabbi Elchanan Smith, Studies in Parshot HaShavua: Second Edition, Jerusalem 5764, Parshat Mishpatim, pages 327-346.
- Amos 2:6; Yirmiyahu 34:8-16; Divrei Hayamim II 28:6-16; Nechemiah 5:1-13.
- Granted that the Tzitz Eliezer, volume 15, article 40 and volume 17, article 2 mandates forcing medical treatment in order to prevent loss of sight, however this seems to be derived from the definition of damage to the eye as pikuach nefesh, see the opinion of Rabbi Yitzchok Zilberstein at the end of endnote 21.
- Earlier, end of section 2.
- The poskim disagree regarding the question of how far we may go to involuntarily force treatment on a patient. Earlier in endnote 11, we brought the opinion of Rabbi Shilo Raphael, who believes that nowadays it is not possible to force treatment on a patient. Opposing this is Rabbi Waldenberg (see earlier endnote 19), who allows forcing treatment even for damage to the eye. According to Rabbi Moshe Feinstein (Igrot Moshe Responsa, Choshen Mishpat, volume 2, article 73:5; ibid., article 74; ibid., Yoreh Deah, volume 3, article 36; ibid., volume 4, article 24:4), when the refusal of a patient to treatment is due to loss of hope and it is obvious that it is a foolish action – we force him to receive treatment, and this applies as well when all the doctors believe there is a need to perform this procedure. When talking about a surgery that has risk involved in medical intervention combined with uncertainty regarding the success of the procedure, if the patient will most likely recover then we force him to perform the surgery, but if there is calculated risk we do not intervene. According to him, regarding calculated risks, “there is ownership of man over his life… therefore it makes sense that if the patient does not want [the procedure] because he prefers his definite temporary life over the possibility of longer life, he is permitted not to be healed” (in the aforementioned responsa, Yoreh Deah, volume 3, article 36). Rav Feinstein also writes there that if the patient is afraid to be physically impaired due to the surgery and there is clear danger by withholding from the surgery, we force him to perform the procedure. Even though his opinion in some of the previous cases was to force treatment on the patient, Rav Feinstein remarks in some of these responsa that not infrequently is there a worry that the act of coercion will harm the patient and his health, and therefore one must consider these matters carefully and not intervene when the risk is present. Rabbi Shlomo Zalman Auerbach ruled that when doctors determine that one needs their leg amputated and the patient is not interested in being physically impaired, one should not coerce the patient into the surgery, even if the man would die without the surgery and this procedure would save his life. This he writes in the name of the Nishmat Avraham, Yoreh Deah, article 155:2; editor’s note on the essay of Judge Amnon Carmi (earlier endnote 4. The editors note is found on pages 316-325 and relies on “a rabbi posek”. The editor is Rabbi Avraham Steinberg and the rabbi is Rabbi Shlomo Zalman Auerbach); Rabbi Mordechai Halperin, ‘Parental Resistance to Surgery for a Critically Ill Infant’, Assia Books, 8 (5745), pages 24-25 (see earlier endnote 12). Similarly, Rabbi Shlomo Zalman Auerbach (Minchat Shlomo Responsa, volume 1, article 91:24) writes that, regarding a patient on his deathbed who is suffering, one may withhold drug administration if he requests this, but if he is a God-fearing man and is of sound mind, it is fitting to explain to him that “one hour in this world is better than a lifetime in the next”. In both of these cases, Rav Auerbach’s opinion is that we do not force medical treatment on a patient, even if the halacha views it best to treat him. According to the opinion of Rabbi Shaul Yisraeli, if the evaluation is that the patient will suffer after the surgery as well, it is his right to oppose it and one should not force the procedure on him; See Be’Mareh HaBazak Responsa, volume 3, article 125, and footnote 651. The opinion of Rabbi Yitzchok Zilberstein (‘Involuntary Treatment of a Patient’, Tzohar, 3 , pages 213-219) is that in any circumstance where there is an obligation to heal there is also an obligation to forcefully treat, and he precedes to explain how his methodology is in accordance with the opinions of Rav Feinstein and Rav Auerbach. In a different responsum (‘Forcing Medical Treatment’, Yeshurun, 13 , pages 530-533) Rabbi Yitzchok Zilberstein adds that the obligation to coerce treatment is only in situations where there is a present danger. According to the opinion of Rabbi Dichovsky (‘Forcing Examinations and Treatment: Halachic Aspects of AIDS’, Assia Books, 7 (5754), pages 73-78), one may force medical treatment even in cases where there is no “present danger”. His opinion is that one may force blood tests on at-risk groups for AIDS, based on the assumption that there are definitely sick patients within this demographic, and the examination is for their own good. Furthermore, one may even obligate them in this test from the perspective of protecting the public from a “Rodef” (a murderous pursuer). Compare this to what we write in position paper ‘Placing Sanctions on Anti-Vaxxers’ (earlier endnote 13). For additional thoughts see: Rabbi Mordechai Halperin, ‘Parental Resistance to Surgery for a Critically Ill Infant’, Assia Books, 8 (5745), pages 19-31; Rabbi Moshe Raziel, ‘Forcing a Patient to Receive Medical Treatment’, Tchumin, 2 (5741), pages 325-335; Rabbi Naftali Bar-Ilan and Dr. Yechiel Bar-Ilan, ‘Involuntary Medical Treatment’, Tchumin, 25 , pages 22-40; Rabbi Dr. Yaakov Genizi, ‘The Doctor’s Obligation According to Halacha for Treating a Terminal Patient Who Refuses Medical Care’, Assia Books, 14 (5773), pages 146-166; Rabbi Yuval Cherlow, ‘Withholding Treatment in Terminally Ill Infants Infected with Invasive Bacteria’ Assia, 85-86 (5769), page 48-62; Nishmat Avraham, Yoreh Deah, article 155:2; The Medical Halachic Encyclopedia, volume 2, entry ‘Informed Consent’, pages 670-687.