Estate Planning Series Part XI: Living Wills, Health Care Issues- Must the Patient be Told the Truth? by Rabbi Chaim Jachter and Martin M. Shenkman, Esq.



            In this issue, we will discuss the delicate topic of telling the truth to patients.  Since this is an issue commonly addressed in living wills, it is important for us to address this topic in the context of this series. "Truth is not just an important Jewish quality. It is called the seal of God, the emblem by which God is known, based on the Torah verse that informs us that this is one of God's characteristics" (Shabbat 55a, Exodus 34:6). Truthfulness affects many aspects of Halacha and estate planning. For example, truthfulness mandates presenting a true and accurate picture of an estate on any tax filing. Tax fraud and evasion is Halachically the equivalent of theft. Truthfulness requires that one provide fair, complete, and open discussion with family and others concerning the size and nature of assets, and so forth. For this discussion, we will focus on one of the most emotionally difficult aspects of truth telling. Must a seriously ill patient be fully informed of his condition because of the Torah's obligation to tell the truth?


Balancing Halachic Values

            When dealing with the issue of informing a patient of a serious illness, care givers and family must delicately balance the Halachic values of stating the truth and preserving the well being of the patient.  Truth is a paramount Torah value. Nevertheless, the Torah records that Hashem inaccurately reported to Avraham the comments that Sarah had made in order to preserve marital harmony (see Bereishit 18:12-13 and Rashi ad. loc.).  Similarly, one should not present an accurate assessment of a patient's health to the patient if it will adversely affect the health of the patient.

            This point is expressed in a number of classical sources.  The Gemara (Moed Katan 26b) teaches that one must not inform a very sick person of the death of a relative, lest this depress the patient.  The Shulchan Aruch (Yoreh Deah 337) codifies this rule as normative.  The Shach (ibid. subsection 1) adds that even if the patient is aware of the death of the relative we do not instruct him to perform Keriah lest it "increase his level of anxiety."  Rav Shlomo Zalman Auerbach (cited in the Nishmat Avraham Y.D. 337:2) goes even further.  He rules that if a mourner must visit a gravely ill patient during Shiva, the mourner may remove any sign of mourning, such as ripped clothes and non-leather shoes, in order to hide the fact that he is in mourning.

            The Midrash (Kohelet Rabbah 5:6) describes a conversation between Yeshaya the prophet and King Chizkiyahu.  Hashem sent Yeshaya to inform Chizkiyahu that the latter's illness was fatal.  The Midrash describes Chizkiyahu's criticism of Yeshaya for delivering such a depressing message.  Chizkiyahu responded to Yeshaya's message that he will die from his illness as follows:

Customarily, when one visits the sick, the visitor says to the patient, "May Heaven have mercy on you."  When a physician visits a sick individual he tells him, "This you may eat and this you may not eat.  This you may drink and this you may not drink."  Even if the doctor sees that the patient is near death he does not say to him, "Write a will for your family," lest this weaken the patient's resolve.

We see that it is insufficient to tend to the patient's physical needs without paying attention to his psychological needs.


Shulchan Aruch

             The Shulchan Aruch codifies these attitudes.  We must make every effort to avoid discouraging a very sick individual.  We must not cry before the sick person, nor may we eulogize the deathly ill person in his presence lest this break his heart (Y.D. 337).  No talk of funeral preparations may take place while the person is still living (Y.D. 339:1).  Dr. Avraham S. Avraham adds (Nishmat Avraham Y.D. 337:4) that both visitors and medical personnel must exercise discretion when talking in the presence of a patient who is unconscious.  This is because the patient may, in truth, be conscious and may hear discouraging words that have the potential to break his spirit.

             We must take great care to avoid discouraging a patient when instructing him to recite the &$&* (confessional) that is to be recited prior to death (Y.D. 338:1).  The Shulchan Aruch states that we approach the gravely ill person in the following manner:

We say to him, "Many have recited the Viduy and did not subsequently die, and many who have not recited the Viduy have died, and all who confess have a share in the world to come."

            Concern for the psychological impact of the instruction to recite the &$&* is so great that the following practice developed in Berlin and some other communities more than two hundred years ago.  The Chochmat Adam (151:11) records that in these communities leaders would go to anyone who was sick for three days and instruct him to execute a will and recite the Viduy.  The Chochmat Adam notes that since this was the standard practice for all ill patients, the patient did not perceive this instruction as an indication that he was in imminent danger of dying.  He recommends that all communities adopt this practice.


Practical Advice - Rav J. David Bleich and Dr. Avraham S. Avraham

            Rav J. David Bleich (Judaism and Healing, page 33) offers the following helpful suggestions for implementing these Halachot in the contemporary setting:

There is no need to convey a precise diagnosis to the patient when such information can reasonably be withheld if the patient will identify the diagnosed condition with a terminal malady.  When the patient is aware of the gravity of his situation, the physician should always be encouraging and positive in his approach.  He should stress the positive aspects of available modes of therapy and, by word and action, encourage the patient not to abandon hope.  This is not to say that the doctor should guarantee either recovery or longevity.  He should, rather, endeavor to bolster the spirits of his patients without denying the possibility of serious developments.  Above all, the physician's tone and demeanor should at all times be hopeful and supportive.

            Rav Betzalel Stern, a twentieth century authority, ruled that doctors should not reveal to a patient that the patient is afflicted with cancer (Teshuvot B'tzeil Hachochma 2:55).  Dr. Avraham S. Avraham (Nishmat Avraham Y.D. 338:3), however, notes that this can sometimes be impossible and/or counterproductive.  Ignorance, in some situations, is not bliss and may cause the patient to panic more than if he has accurate knowledge of his illness.  Dr. Avraham recommends that the doctor first reveal the information to very close relatives and together with those relatives present the bad news to the patient.  The conversation must be as encouraging as possible and coupled with the point that the physician and the therapy will serve as Hashem's messenger together with the prayers of the patient and his family in facilitating a full recovery.

            Dr. Avraham notes that if the patient is suffering in an advanced stage of cancer, to the extent that there is no hope of curing the cancer and that all the patient will receive is supportive care to make him more comfortable, then it should not be revealed to the patient that he is suffering from cancer.  One may add that if the patient knows that he is suffering from cancer, but does not know that his condition has worsened, then perhaps the doctor should not reveal the updated information to the patient.  Generally speaking, if one is God forbid faced with this question, he should consult with his Rav and a team of competent professionals to devise an appropriate course of action.  If family and care givers handle the situation properly, experience teaches that it can serve to increase both the quality and the length of life of the patient.



            It should be noted that the Halachic approach to truth telling runs very counter to current Western culture.  Western culture today emphasizes the right of patients to know the details of the malady they are suffering from. As a result, many living will documents include an express statement that the patient must be informed in all situations.  If one has executed a living will with such a provision, or one that does not expressly mandate that care givers follow Halacha regarding this issue, it is very likely that one's care givers will not follow the Halacha in this regard.  Thus, it is crucial to execute a living will with provisions that family and care givers consult a Rav regarding how to observe this Halacha. When acting as a care giver, the decisions involved are extremely personal, since the emotional response of a particular patient to a particular situation and to the manner in which he is informed must all be anticipated.

            Next week, God willing and Bli Neder, we will discuss the issue of insurance in Halacha.

Estate Planning Series Part XII: Insurance by Rabbi Chaim Jachter and Martin M. Shenkman, Esq

Estate Planning Series Part X: Living Wills, Health Care Issues, and Autopsies by Rabbi Chaim Jachter and Martin M. Shenkman Esq.