In many states, every patient admitted to a hospital must be offered the option of filling out “advanced directives,” commonly know as a living will, indicating their medical wishes in case the patient is not competent to express their desires at a future time. A patient may also choose to execute a durable power of attorney, indicating to whom they would like to transfer legal authority to make medical decisions for them in case of incapacitation. While Judaism may not have encouraged the proliferation of living wills and durable powers of attorney, it has come to terms with them and recognizes the opportunity that these documents offer to have Jewish law applied in end of life situations. The most direct argument for advanced directives is the recognition that if the patient has not indicated his wishes in advance, someone else will and that person may not be someone whose choices the patient would accept.
Both the Agudath Israel and the Rabbinical Council of America have drafted model living wills and powers of attorney that are intended to meet the needs of the Torah-sensitive Jew. It is important to understand that advanced directives do not intrinsically require lack of treatment in cases of medical emergency. While one may legally choose to refuse life-sustaining treatment in cases of critical illness, one is also free to mandate that “everything” be tried. The Jewish person contemplating using a power of attorney may name their Rabbi to be the their legal proxy, ensuring that any issues of Jewish law will be dealt with appropriately.
The crucial issue involved with a living will is whether the Torah grants the Jew the autonomy to refuse treatment. Rabbi Moshe Feinstein clearly allows the terminally ill patient in intractable pain to refuse life prolonging treatment that will neither cure him, nor relieve his pain. Surely, such a patient may refuse resuscitation or intubation if he so chooses. A non-terminally ill patient may refuse treatment if the proposed therapy is sufficiently dangerous or unproven.
Regarding the durable power of attorney, we may gain insight from a different responsum. Rabbi Feinstein states that if a pain-stricken terminally ill patient were to develop a second illness for which there is a cure (such as a pneumonia in a terminal cancer patient), he may refuse treatment if he would prefer to die and it would be “proper not to treat him in any manner that would prolong the dying process”, such as treating the second illness. Nevertheless, Rabbi Feinstein writes, this is a decision that the patient must make, and if the patient is incompetent, the doctor should consult the family regarding treatment, since they are closest to the patient. While the family’s autonomy is limited by the same factors that limit the patient himself, we see that Judaism does recognize the concept of substituted judgment in such cases. A durable power of attorney is the easiest method of recognizing who should be consulted if the patient is incompetent.
The question of “do not resuscitate” orders is complex, yet fascinating. The Torah commandment of “do not stand by idly while your neighbor’s blood is being spilled” (a mitzvah that is commonly understood to mean that everyone has a personal obligation to prevent his friend from being harmed) would seem to mandate compulsory resuscitation of everyone, since cardiac arrest and apnea certainly represent the ultimate in dangerous situations. Why then was it not always the custom to attempt CPR on every Jew who died?
The reason is because Judaism recognizes the inevitability of death. When someone dies, we are proscribed from desecrating the body, which includes invasion of the corpse. Moreover, the Code of Jewish Law (Shulchan Aruch) explains that there is a prohibition of touching a moribund patient (goses) who is estimated to have less than three days to live. Resuscitation of a goses is not required, and in fact may be prohibited, as a forbidden intrusion on the natural dying process. Therefore, the underlying assumption in Judaism is that one should NOT resuscitate a gravely ill patient, but only a patient for whom there is a reasonable expectation of reversing the underlying cause of physiologic collapse. As I mentioned in a previous article, one should not resuscitate a patient whose cessation of life functions is because their body could no longer sustain life. On the other hand, one must resuscitate a person whose physiologic collapse is secondary to a reversible illness, such as a treatable arrhythmia. Additionally, one may choose not to be resuscitated if the probability of success is low and the risk of painful disability is great. Therefore, in the right situation, a person may choose not to be resuscitated.
© 1999 Daniel Eisenberg, MD
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