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Israeli District Court undertaking creative legal acrobatics advances 2005 Dying Patient Law

HAARETZ: The recent Tel Aviv District Court ruling allowing a patient with terminal amyotrophic lateral sclerosis (ALS, also called Lou Gehrig’s disease) to end his life is a courageous decision. It advances the rights of an individual vis-a-vis his life and death, above and beyond the 2005 Dying Patient Law, which allows a person to refuse life-saving medical treatment only if their life expectancy is less than six months.
The court even described the method to be implemented: It is necessary to review and then accept the request of the patient to end his life if it is made when he is of sound mind and body. If such a request is indeed received, it will be possible to “carry out a gradual reduction in the rate of breathing, to a minimum …, and in so doing bring about the patient’s death”.

Avinoam Reches then continues:

The district court decision, handed down by Judge Rahamim Cohen, is intended to correct the deficiencies of the 2005 law. First, dying Second, the law bans any active action that brings about a person’s death “especially disconnecting or removing that person from the respirator” thus sentencing the patient to continued suffering for as long as the respirator functions. In the recent case, this forced the court to undertake some creative legal acrobatics. The patient was not removed from the device per se, rather the device was in essence removed from the patient.
It is important to remember that the precedent-setting decision on this matter was handed down in 1998 in the case of Itai Arad, who also suffered from ALS and was in need of a respirator. But the ruling at
that time, by Judge Moshe Talgam of the Tel Aviv District Court, seven years before the Knesset passed the Dying Patient Law, could have been a bit more decisive and direct: “The plaintiff should not be connected to any respirator or continual resuscitation device, and if he is hooked up that connection should be ended when it becomes clear that there is no possibility to maintain life without continuous assistance.”
After a long, drawn-out process, the story of the life and death of Arad, who was euthanized at Hadassah University Hospital at his request and under the auspices of the court, brought about the passage of the 2005 law. We owe Arad a great debt for his courage in deciding his fate for himself, and the fate of others who followed in his footsteps. Today, we must continue to push the bounds of the existing law even farther: What about the case of a ‘terminally ill’ patient whose life is not dependent on artificial means? In other words, what can be done for a person who has a malignant disease that does not respond to treatment and will lead to his certain death if, in the meantime, the person is still able to breathe on his own? How can such a person be sparedsuffering in the absence of a respirator that can be disconnected? Such a patient cannot enjoy the most basic human right for a dignified and redeeming death, and will in the name of the law continue to suffer.

The law does not forbid a seriously ill person from committing suicide if he so desires, but providing assistance in carrying out that action is deemed a crime. This reality has more than once led to a hopeless situation in which a family member in effect kills a patient to save him from suffering, and then immediately takes his own life as well, out of fear of the law. Is this the solution we as a society are offering to these same terminal patients and their families?

Another option for such gravely ill patients is to arrange to end their lives in a foreign country, far from family and friends. This happened with Israeli journalist and broadcaster Adi Talmor, who chose to ‘buy death’ in 2011 in Switzerland, where the law allows a patient with a terminal disease to purchase and ingest a deadly drug, and thus limit undue suffering and end his life at a time of his choosing.
The state of Oregon was the first to approve, in 1998, the Death and Dignity Act, the first physician-assisted suicide law in the country, under which a dying patient can, under specific conditions (for example, if he is an adult and a resident of the state for at least five years), receive a prescription for a death-inducing medicine and end his life without suffering.
In Israel, proposed physician-assisted suicide proposals never passed the hurdles of legislation because of religious objections. But we must not let up in this battle. In my view, there is no principle or belief that can coerce a person to continue to suffer without hope.To preface a necessary debate on this subject within Israeli society, it is worth repeating the words of the famous cardiac surgeon Prof. Christiaan Barnard: “I have learned from my life in medicine that death is not always the enemy. Often it is good medical treatment. Often it achieves what medicine cannot achieve? It stops suffering.”

Avinoam Reches is emeritus professor of neurology at the Hadassah
Univeristy Hospitals and chairman of the ethics committee of the Israel Medical Association.


(from HAARETZ, January 6, 2015)