Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshat VaYishlach

29 Kislev 5767

December 9, 2006

Vol.16 No.12

Estate Planning Health Care Proxies and Living Wills

by Rabbi Chaim Jachter

(assisted by Martin M. Shenkman, Esq.)

Introduction

Last week, we began discussing health care proxies and living wills from a Halachic perspective. We noted that this perspective on end of life issues differs dramatically from the accepted norms of contemporary American society. For example, we never condone active euthanasia, such as removing a ventilator from a patient in a permanent vegetative state. We also rarely condone passive euthanasia. Rav Moshe Feinstein and Rav Shlomo Zalman Auerbach in certain circumstances permit withholding extraordinary measures from a gravely ill patient who is suffering greatly and has no hope of cure. This week, we shall conclude our discussion of this matter and emphasize the importance of signing a health care proxy and possibly a Halachically approved living will in order to insure that one's Halachic rights will be honored. As this is the last installment of our series on estate planning, I express a final word of gratitude to attorney Martin Shenkman for his assistance in the preparation of this series.

Challenges to the Rulings of Rav Moshe and Rav Shlomo Zalman

Not all authorities agree with Rav Moshe and Rav Shlomo Zalman's ruling. Some believe that one must prolong life under all circumstances (see Teshuvot Tzitz Eliezer 14:80 and Rav J. David Bleich's Judaism and Healing, pages 134-145). They believe that Halacha forbids withholding any medical treatment from any patient (see, though, Tzitz Eliezer 13:89:11). They argue that the Rama (cited in our previous issue) only permits removing a non-medical impediment, such as the woodchopper in the specific situation he addressed.

Rav Feivel Cohen agrees with this approach, arguing that just as Halacha requires us to violate Shabbat in order to save even a few moments of life (Shulchan Aruch Orach Chaim 329:4 and Beiur Halacha ad. loc. s.v. Ela), so too we are obligated to save someone's life even if he will live only a few minutes more. Rav Cohen adds that the Shulchan Aruch describes a case in which a building collapsed on someone who would most likely be experiencing great pain at that moment, yet we are required to save him. Rav Cohen derives from this that we must act heroically to save someone's life even if that person is experiencing great pain and little "quality of life". Rav Cohen argues that despite the fact the Gemara and Ran (cited last week) permit one to Daven for the death of one who is suffering greatly from an incurable illness, Halacha (paradoxically) obligates one to undertake all measures to help save such an individual. Rav Moshe and Rav Shlomo would likely respond that it is impossible for Halacha to permit one to pray for the death of someone whom we are obligated to make all efforts to prolong his life.

We should note that Rav Shlomo Zalman cites Rav Cohen's argument but rejects it (although he does not explain the basis for his rejection in his brief responsum that we cited in our previous issue). Perhaps Rav Shlomo Zalman and Rav Moshe would say that that the Shulchan Aruch addresses a situation in which either the victim expressed his desire that his life be extended despite the pain he is experiencing or removal of the debris would alleviate his suffering as well as briefly extend his life. Rav Mordechai Willig told me that one may follow the opinion of Rav Moshe and Rav Shlomo Zalman in this regard, as Rav Zalman Nechemia Goldberg agrees with their approach.

Rav Cohen noted that even Rav Moshe and Rav Shlomo Zalman would agree that in many circumstances it would be forbidden for a patient to sign a DNR (do not resuscitate) order. Indeed, one should exercise great care and consult with one's Rav before signing a DNR, as some hospitals and doctors encourage (and sometimes even apply great pressure) the signing of such orders when there is absolutely no Halachic justification for doing so. Rav Cohen also stated that Rav Moshe's ruling applies only if the patient is suffering greatly to the extent that he would prefer to die rather than experience such pain. Others major Rabbanim disagree, and have told me that Rav Moshe's ruling may apply even if the patient is not suffering. For example, they would consider permitting the family of a patient in a permanent vegetative state (where the cognitive component of the brain no longer functions) to sign a DNR order.

should note that last week we stated that experience teaches that one be certain that he has an expert medical evaluation before signing a DNR order. This might necessitate seeking a second expert opinion. One should not allow himself to be intimidated by medical personnel who might be offended and discourage seeking a second opinion. Rav Feivel Cohen stated that Halacha obligates family members of gravely ill patients to insure that health care providers are following hospital protocols in the care of their loved one. Unfortunately, some health care providers tend to neglect the needs of gravely ill patients who are close to death.

Accordingly, it is vital that one complete a health care proxy and/or living will which clearly chooses and empowers a Rav to render an appropriate decision should the situation (God forbid) arise. Otherwise, it will difficult to assert one's rights to hospital administrators and health insurance providers. Moreover, a statement indicating one's attitude regarding heroic measures administered to deathly ill individuals will sometimes constitute an important component of a Halachic authority's decision in this area.

Narcotics and Other Pain Relief in Near Death Patients

Narcotics or other pain relievers are commonly administered to relieve pain and suffering. This is especially true when doctors have given up hope of curing the patient, and the patient is near death. The question arises whether Halacha permits the administration of pain relief in circumstances in which the medication may hasten death.

Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 13:87) permits the administration of pain medication in such circumstances. He presents two reasons for this ruling. First, he notes that relieving pain is a legitimate medical objective. Hence, since Halacha permits caregivers to take risks in the attempt to heal a patient (see Ramban, Torat HaAdam: Shaar HaSakanah), one may risk the life of the patient in the attempt to eliminate his pain. Second, the serious pain endured by the patient may itself cause harm or even death if left untreated. Thus, in some circumstances, pain relief may actually extend the life of the patient.

Rav Shlomo Zalman Auerbach (cited in the Nishmat Avraham Y.D. 339:4; also see Teshuvot Igrot Moshe C.M. 2:73:1) essentially agrees with this ruling save for one circumstance. Rav Shlomo Zalman forbids administering morphine when a particular injection entails the risk of causing the patient to stop breathing. He agrees with Rav Waldenberg only when the aggregate pain relief entails this risk. Rav Auerbach also insists that the morphine be administered solely for the purpose of pain relief (and not a backhanded form of euthanasia). The risk in many situations is minimal, so pain relief may be permitted. But the benefits and risks can vary considerably depending on the patient's condition and the procedures to be followed. Thus, it is vitally important to designate, in the health care proxy and/or living will, a Halachic authority who will consult with the attending physician and help decide which of these opinions should be followed in the particular circumstances.

Practical Considerations

There are also a number of practical considerations related to planning a living will to assure that his intent to follow Halacha is respected. Separate documents should be signed as one's living will and health care proxy (appointing one's health care agent). The health care proxy alone, while effective to a certain extent, does not allow the patient to express whether he wishes to have extraordinary measures taken to prolong even minimal life in case of great suffering. Recall from last week that according to Rav Shlomo Zalman, patient input is critical in determining the Halachic course of action in many cases.

One might also consider the option of merely filling out a health care proxy and subsequently writing a document that is addressed to the proxy and one's Rav in which one would express his feelings regarding the extension of life in case of enormous suffering and no hope for cure. One must be exceedingly careful in regards to the writing of a living will to insure that it does not create the potential to prevent one from receiving proper medical care.

Each document should specify that health care decisions are to be applied in a manner consistent with Orthodox Jewish law (Halacha). One should clarify that a particular Rabbi, a Rabbi selected by his agent, or a Rabbi appointed by an organization is authorized to resolve any Halachic issues.

Be practical. If the Rabbi one names cannot be reached, who will address Halachic issues? List several alternates and include several telephone numbers for each (home, office, and cellular) in the document. Sign several original documents and give one to one's doctor, Rav, and agent. One should also endeavor, although it is obviously difficult, to discuss these issues in advance with family, the persons named as agents, and one's Rav. These discussions will enable those involved to better implement a person's wishes within the guidelines of Halacha. It will help them better anticipate how different circumstances may affect the person. Most importantly, these discussions, however difficult, will make the decision process less traumatic for the family if (God forbid) such a situation arises. One might also consider carrying a card identifying one's health care proxy at all times. This helps assure that medical personnel will be able to contact the health care proxy in the event of an emergency.

Organ Donation

A proper living will specifies which organs, if any, one wishes to donate. There are many areas of debate among Halachic authorities regarding organ donation, foremost of which over whether Halacha recognizes brain death as a definition of death. One can contemplate the permissibility of donating a heart, lung, or liver only if brain death is considered Halachic death, because currently, doctors can only harvest certain organs from donors whose hearts are still functioning. In order to avoid family fights that have the potential for great acrimony, one should designate a Rav who will resolve such issues. Otherwise, family members are likely to become embroiled in a fight regarding which Rav should be consulted. In other issues of Kol Torah, we will (B"N) discuss this highly controversial issue.