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Law, ethics and medicine: Paper: Rethinking paternalism: an exploration of responses to the Israel Patient's Rights Act 1996
  • Simon Waltho
J Med Ethics 2011;37:9 540-543 Published Online First: 30 March 2011 doi:10.1136/jme.2010.042101

  1. Conflicts for Jewish patients and physicians

    • Irene Campbell-Taylor, Consultant
    Private

    The article by Waltho (1) raises some issues of concern for Jewish patients, and physicians, outside of Israel Canada is a country with a significant mix of races and religions. To the observant Jewish population, the issue of "informed refusal" presents a conflict between what is required of physicians and what religion dictates. My own experience when working in a hospital functioning on strictly observant rules did not raise the same issues with more secularly directed Jewish patients. Our courts (Canada) have reaffirmed repeatedly a patient's right to refuse treatment even when it is clear treatment is necessary to preserve the life or health of the patient. (2, 3, 4) Justice Robins of the Ontario Court of Appeal explained: "The right to determine what shall, or shall not, be done with one's own body, and to be free from non- consensual medical treatment, is a right deeply rooted in our common law. This right underlines the doctrine of informed consent. With very limited exceptions, every person's body is considered inviolate, and, accordingly, every competent adult has the right to be free from unwanted medical treatment. The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self- determination. The doctrine of informed consent ensures the freedom of individuals to make choices about their medical care. It is the patient, not the physician, who ultimately must decide if treatment -- any treatment -- is to be administered." Basically, this is reflected in the Canadian Charter of Rights and Freedoms that underlies all law, with very few and very specific exceptions. The Supreme Court of Canada has made the same decision and makes it clear that when patients decide against recommended treatment, particularly urgent or medically necessary treatment, discussions about their decision must be conducted with some sensitivity. While recognizing an individual's right to refuse, physicians must at the same time explain the consequences of the refusal without creating a perception of coercion in seeking consent. Although the law in Canada is quite clear on the matter, the conflicts that exist for both Jewish physicians and their observant patients can be extremely trying and there appears to be little available in the way of direction that addresses these issues.

    1 Waltho S. Rethinking paternalism: an exploration of responses to the Israel Patient's Rights Act 1. 1996 J Med Ethics. 2011; 37.

    2. Nancy B. v. Hotel-Dieu de Quebec (1992), 86 D.L.R. (4th) 385 (Que. S.C.)

    3. Malette v. Shulman (1990), 72 O.R. (2d) 417 (C.A.)).

    4. Starson v. Swayze, 2003 SCC 32

    Conflict of Interest:

    None declared

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    Published 23 August 2011

  2. That "Non-maleficence is not a novel concern" is precisely why it should be discussed more widely

    • Simon D Waltho
    Cardiff University

    Many thanks to Adam J Sher for drawing my (and others') attention to this particular aspect of the IPRA's genesis. Notwithstanding that it renders my own contribution to such debates even more modest than I had at first suspected, to discover that my thoughts echoed (however belatedly!) those of such a respected individual as Rabbi Feinstein is somewhat edifying, and I would hope that most people would rather find their views redundant than novel in matters of such importance. Nevertheless, I feel it may be worthwhile to make a few brief clarifications as to both my intentions and conclusions.

    I had not wished to imply that non-maleficence was a new idea per se. Beauchamp and Childress' use of the term in the 1st edition of Principles of Biomedical Ethics predates my own birth by several months; moreover, it was notable even then for being articulated, not in terms of any Western philosophical tradition, but as an expansion of the ancient (if somewhat obscure) injunction to 'first, do no harm' (Beauchamp and Childress, 1979, p.97). Not only that, since there is a plausible argument that as soon as one claims any kind of special ability to heal one's fellows one has accepted a moral obligation to at least not make things any worse, it may even be seen as (if nothing else, chronologically) the very first element of medical ethics.

    In truth, as I had hoped to make clear with regards to Gross' article at least, I had not even wished to imply that non-maleficence was not already being considered in cases of coercive treatment; rather that, given its evident importance to the decision-making process, it is rather underused in discussion of them (although perhaps less so than I had realised in the case of Israel). That said, given the judges' deliberations in Shefer v State of Israel, I am rather surprised that neither Gross nor Glick made more use of it. As noted in the original article, I think it important that in discussing such cases we adopt where possible the language that best enables us to give these elements their due weight. It is a rather subtle point and of relatively slight importance, but I fear the evident wisdom of Jewish law in such matters is somewhat undersold by describing decisions in binary terms as a conflict between, or balancing out of, two opposing poles named autonomy and either 'dignity' or 'beneficence'.

    Furthermore, it seems clear to me that despite Glick's claims of "virtual unanimity [as to the pre-eminence of patient autonomy] in the West" such concerns are not, and should not be, the sole preserve of what Gross terms "a society... where respect for life supersedes respect for dignity". As I argued in the original article, the apparent pre-eminence of autonomy in Western medical ethics seems to me the result of failing to realise that concerns of non-maleficence are often implicitly present in such decisions. I would contend that this is not a case where Jewish law and "Western" values assign different relative weights to similar principles; rather it is a case where Jewish law has prompted reflection that can help to better articulate what I suspect many in the West already consider important (Glick's examples from Britain and the US appear to suggest as much).

    I am not concerned to claim any particular moral insight for myself. However, given that the 6th Edition of Principles of Biomedical Ethics (2009) still does not include non-maleficence in its discussion of paternalism and coercive treatment, and that neither Gross nor Glick explicitly mention it in their discussions of the IPRA, it seems that there is room to argue further for its inclusion. If in doing so I am merely adding my own voice to an existing chorus of others', then so much the better!

    Conflict of Interest:

    None declared

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    Published 29 July 2011

  3. Non-maleficence is not a novel consideration

    • Adam J Sher, Medical Student
    University of Birmingham

    Simon Waltho is right to note that his analysis does not offer anything particularly new to this debate. Gross was not the only author to highlight the harm that the actual act of forcing a patient to receive treatment against his express wishes might cause. Before the State of Israel introduced the Israeli Patient's Rights Act in 1996, the issue of whether one could force life-saving treatment on a patient had already been much discussed by Israeli judges.

    I am thinking specifically of the case of Shefer v State of Israel (CA 506/88 Shefer v. State of Israel [1994]), where the judges considered the traditional Jewish legal opinion on when it was permissible to force a patient to receive life-saving treatment in order to determine whether to reject a petition by a mother to allow her child to refuse such treatment.

    In their deliberations the judges quoted Rabbi Moshe Feinstein, one of the most widely respected adjudicators on Jewish law of this generation. Rabbi Feinstein wrote that "if there is a patient who needs an operation to save him, and there is a high probability that the operation will be successful, the operation should be performed even against his will, so long as there is no fear that the fact that he is being coerced will cause him a greater danger."

    Later in the same case the judges wrote; "great importance [in Jewish law] is attached to the effect that treatment without a patients consent has on him: 'the fact that we compel him endangers him'."

    I contend that the importance of non-maleficence when considering forced treatment is not a new idea, and was in fact one of the earliest concerns that Jewish law had about allowing doctors to force life-saving treatment upon patients.

    Conflict of Interest:

    None declared

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    Published 6 April 2011
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Published letters

  1. Conflicts for Jewish patients and physicians
  2. That "Non-maleficence is not a novel concern" is precisely why it should be discussed more widely
  3. Non-maleficence is not a novel consideration

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