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The Terri Schiavo Case: Related Ethical Dilemmas

The Terri Schiavo Case: Related Ethical Dilemmas

Jewish perspectives on living wills and issues regarding nutrition and hydration in the terminally ill patient.

by

My previous article explained why Jewish law condemns the removal of Terry Schiavo's feeding tube. But that does not imply that treatment must always be provided in every case. The Terry Schiavo case is particularly egregious because the main proponent of removing her feeding tube is her husband, who serves as a very poor surrogate for her. He has far too many conflicts of interest, both monetary (a large malpractice settlement) and personal (he is living with a girlfriend whom he cannot marry as long as Terri is alive) to be trusted to protect her best interests.

The question arises, were she to have had a living will clearly spelling out her desires in case of incapacitation, would that change how Jewish law (Halacha) approaches her case? Additionally, are there any patients for whom provision of nutrition, hydration, and oxygen is not required?

WHAT ARE ADVANCED DIRECTIVES?

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.

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.
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.

DOES JUDAISM ALLOW LIVING WILLS?

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 as 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, a leading a halachic authority from the previous generation, 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 the patient would prefer to die, 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. He states that 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 for recognizing who should be consulted if the patient is incompetent.

DO NOT RESUSCITATE (DNR) ORDERS

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" (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.

In the right situation, a person may choose not to be resuscitated.

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 my previous article, one should not resuscitate a patient whose cessation of life functions is because his or her 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.

MUST WE TREAT EVERYONE?

While discontinuation of treatment in ill patients is almost always forbidden, there are valid factors in Jewish law that influence decisions to limit treatment of the terminally ill. Despite the general rule that therapy may not be withheld even from the sickest of patients, there exists a subset of terminally ill patients that may not require even the most basic treatments that are normally considered to be life sustaining.

NUTRITION AND HYDRATION IN THE TERMINALLY ILL PATIENT

The general consensus in halachic literature has been that certain treatments, such as oxygen, nutrition, and hydration are obligatory for all patients, regardless of the severity of their medical condition. This obligation is predicated upon the assumption that there are certain bodily needs that all people share, regardless of their prognosis, and that failing to provide for these needs constitutes a breach in the obligation to care for one's fellow man.

This line of reasoning considers breathing, eating, and drinking to be normal activities of daily living, and the providing of oxygen, nutrition, and hydration to be extensions of normal physiologic processes rather than medical interventions. Rabbi Shlomo Zalman Auerbach calls these treatments routine, and therefore not open to refusal or withdrawal, unlike certain other more "extraordinary" treatments that need not necessarily always be provided. He considers nutrition, hydration, and oxygen to be absolutely required, similar to antibiotics, insulin, and blood transfusions.

DO WE ALWAYS NEED TO PROVIDE OXYGEN?

This approach makes two assumptions which must be carefully assessed. The first assumption is that these modes of treatment are beneficial (or possibly even essential) for every patient. The second assumption is that these treatments are not harmful to the patient. Oxygen, food, and water are therefore presented as examples of life-sustaining necessities that are crucial to the well-being of all people, regardless of their condition. An analysis of these two assumptions is required to determine whether they are applicable in specific circumstances.

The easiest of these treatments to evaluate would be providing oxygen to a hypoxic (oxygen-starved) patient. Rabbi Moshe Feinstein writes: "And as for the dangerously ill patient who is unable to breathe: one must give him oxygen even if he is in a situation that is impossible to heal, because one can mitigate his suffering; the suffering from the inability to breathe is great, and oxygen removes the suffering." Rabbi Shlomo Zalman Auerbach concurs, adding that oxygen should be provided even against the will of the patient.

A practical case would be a patient with end-stage lung disease. The final common pathway for many pulmonary diseases is degeneration of the lungs to the point where insufficient oxygen enters the blood. These patients are often adequately treated with oxygen via nose prongs or facemask. While the patient's condition is not curable, providing oxygen can relieve the patient's subjective feeling of suffocation caused by decreased levels of oxygen in the blood. This is a clear example of a treatment that fulfills a basic physiologic need, causes significant symptomatic relief, and causes virtually no harm.

However, it is crucial to consider what effect a different set of facts would have on the ultimate halachic outcome. What if the patient suffers from emphysema, a severe lung disease? Theoretically, high oxygen concentrations could suppress the respiratory drive causing the patient to stop breathing completely! At this point, the relative risks and benefits of oxygen therapy must be reevaluated, and alternative, more invasive interventions such as placing the patient on a respirator or performing a lung transplant must be considered. In this case, obvious benefit and minimal risk, the two assumptions upon which rest the argument for treating every oxygen-starved patient, probably do not apply and we must call into question the obligation to give oxygen to this particular patient.

DO WE ALWAYS NEED TO PROVIDE FOOD AND WATER?

The same analysis is useful for evaluation of the obligation to provide nutrition and hydration to terminally ill patients. In order to obligate the physician to provide food and water via "artificial" means such as parenteral nutrition (intravenous), nasogastric tube (esophageal feeding tube), or gastrostomy tube (feeding tube surgically placed through the abdominal wall), our two assumptions must be met. Food and water must be beneficial, or at least not harmful, and the delivery system must be basically risk-free. This is not to say that nutrition and hydration need not be provided if our assumptions are not met. In cases where one or both assumptions are not absolutely true, we must analyze the individual circumstances involved in the patient's care. We perform a risk-benefit analysis and apply the appropriate halachic guidelines, such as obligation to provide or accept risky treatment, to determine the proper course of action.

An example of this approach to evaluating treatment options can be found in Igros Moshe (the published response of Rabbi Moshe Feinstein). Rabbi Feinstein was asked the question: "Should intravenous feeding be provided to a terminally ill patient for whom there is no method of relieving his pain, and should this be done even against the will of the patient?"

Rabbi Feinstein reiterates the requirement to provide oxygen to a suffering patient, regardless of the inability to cure the patient, because of oxygen's palliative benefits. He then responds to the question of providing intravenous nutrition to a terminally ill patient with the intent to

"extend [the patient's] life span [although] prolonging his suffering, when we feel that [the patient] has no pain from abstaining from food. . . Clearly, we must feed him food that will do him no harm, for food surely strengthens him somewhat, despite the fact that neither the patient nor his attendants are aware of this effect."

Rabbi Feinstein distinguishes this case from the medical treatment of a terminally ill patient when he writes:

"Our ruling in this matter is not to be compared with the question of giving medicine to a terminally ill patient. The distinction is obvious: Food is a natural substance which must be consumed to insure survival."

Nevertheless, Rabbi Feinstein recognizes a subset of ill patients with high fevers who should not be fed "even those foods that are normally fed to the ill" because of potential harm.

Rabbi Feinstein's position suggests that the necessity of feeding (and hydrating) terminally ill patients is predicated upon there being benefit to the patient and the absence of anticipated harm from the providing of nutrition as opposed to an objective obligation to feed per se. But what if the physician feels that nutrition or hydration is not only non-indicated, but actually contra-indicated in a particular patient? This may undermine our first assumption -- benefit to the patient. What if the vehicle used to provide the nutrition has potential for severe complications? This would undermine our second assumption -- lack of harm to the patient.

A SPECIAL GROUP OF PEOPLE

Good ethics start with good facts.

In clinical practice, this issue arises in the treatment of a subset of terminally ill patients for whom fluids may cause pulmonary edema (fluid overload) without definite beneficial results. In such a patient, intravenous fluids may not be medically indicated or halachically required. Similarly, what if the only feasible method of providing nutrition is by nasogastric tube feeding and the patient is at significant risk for reflux of stomach contents with aspiration into the lungs and subsequent pneumonia?

If the patient's condition does not medically require the nutrition, then the harm to the patient may outweigh the assumed benefit of tube-feeding. It is crucial to note that this subset of patients may be very small, limited only to certain patients in the very last segment of their lives, where physiologic processes are so deranged as to invalidate the normal assessment of nutritional and fluid requirements. Additionally, if the patient is close enough to death, it is possible that he fits into the category of goses, the moribund patient, for whom there are strict limitations on invasive treatment. For a patient who does not need food or water, feeding tubes and intravenous lines may only increase his discomfort.

The question of establishing whether a given patient falls into this exclusive category for whom nutrition and/or hydration would not be required is a complex one. While eating, drinking and breathing are basic human functions that are intrinsic to life, each patient must be judged individually, with competent halachic advice sought in every case. The key to analyzing each situation is to realize that good ethics start with good facts. One must provide the posek (halachic decisor) with an accurate, honest, and thorough assessment of the patient's medical condition. Only then can a halachically valid and ethically proper decision be made.

Information on halachic living wills may be obtained from Agudath Israel of America (212) 797-9000 (or go to http://www.jlaw.com/Forms/ ) and the Rabbinical Council of America (212) 807-7888.

Part of this essay is adapted from an article that appeared in Viewpoint: National Council of Young Israel, Winter 1996 entitled: "HALACHIC ISSUES REGARDING FUTILITY OF MEDICAL TREATMENT: Applications To Nutrition And Hydration In The Terminally Ill PatientViewpoint: National Council of Young Israel, Winter 1996

Igros Moshe, Choshen Mishpat II, Chapter 73:1, p. 301

Nishmas Avraham, Yoreh Deah, siman 339, sif katan 4, p.445-446: Halacha U'Refuah, vol. 2, p. 131, 245-246

Igros Moshe, Choshen Mishpat II, Chapter 73:1, p. 301

"Treatment of the Dying (Goses)", Halacha V'Refuah, Vol. 2, p. 131

Igros Moshe, Choshen Mishpat II, Chapter 74:3, p. 313 Igros Moshe, Choshen Mishpat II, Chapter 73:1, p. 301

Nishmas Avraham, Yoreh Deah, siman 339, sif katan 4, p.445-446: Halacha U'Refuah, vol. 2, p. 131, 245-246

See also "Should Terri Schiavo Live or Die?"

Published: November 15, 2003


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Visitor Comments: 13

(13) Anonymous, May 29, 2007 4:11 PM

Terri Schiavo's Constitutional Rights of self-deternination

Danial Eisenberg, M.D.

Today there appear to be a great deal of discussion of this subject. There are so many contradictions about this subject.

I would like you write an article about our Constitutional Rights of Self-Determinatin and how it conflict with the Torah.

Thanks you!
Walter

(12) concerned, March 31, 2005 12:00 AM

lashon hora?

There are many comments here regarding Michael Schiavo, including the author's, that border on lashon hora (ok, some don't border, they just are).

I have no personal interest in this case, other than understanding the halacha, but Mr. Schiavo has been denigrated without all the facts. Terri became brain damaged in 1990 (as a result of a heart attack related to bulimia). Only after Mr. Schiavo spent 8 years caring for his wife, did he move on. Mr. Schiavo petitioned the court for a surrogate for Terri, so there would be unbiased opinions regarding her wishes.

If I had to decide, I would probably decide to keep her feeding tube intact. That still doesn't afford me the right to say negative and incorrect things about Michael Schiavo.

(11) ros newman, March 31, 2005 12:00 AM

Correct facts?

Other sources insist that Mike Schiavo has no longer any financial interest as the settlement has mostly been used up on Terri's care already. Evidently he was a devoted caretaker for many years, only finding another woman when all hope for her recovery was lost. These are not subjects for opinion, religious or otherwise, but documentable facts.

(10) Helen (Chaiah) Schwab, March 30, 2005 12:00 AM

Conflict of interest in the husband's guardianship.

During the one day Fast of Esther I felt such pity for the poor woman being slowly starved and dehydrated to death. I don't understand why the courts don't see conflict of interest in the husband's guardianship.
Thank you for your excellent articles.

(9) Tomislav Miletic, March 29, 2005 12:00 AM

Congratulations!
Very well expressed and documented.
I support your point of view 100%. We all have a right to live....
I'm surpised the Court didn't find her husband incompetent of providing for her welfare.

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