Two Questions Concerning Medical Treatment for End-of-Life Patients
1. A woman in our congregation died after a nine-month battle with lung cancer. When she was diagnosed, her oncologist told her it was incurable, but that with treatment, there might be hope for remission. Later that physician revealed that without treatment, she probably would have lived for about six months. According to statistical probability published by nationally recognized cancer organizations, life expectancy for her condition is about nine months. The patient received four variations of chemotherapy, plus radiation, all of which proved to be consistently ineffective. These procedures never resulted in shrinking the size of her tumors nor putting her into remission. The treatment was also very costly, though fortunately most of these expenses were covered by Medicare, supplemented by private medical insurance. Furthermore, it produced the usual side effects, e.g., nausea, memory confusion, hair loss, fatigue, great pain, loss of strength, difficulty in breathing, etc., which compromised the quality of her life. From the perspective of Jewish tradition, was she morally obligated to pursue treatment which gave her an additional three months of life, but involved enormous cost and physical and mental distress? Does the notion of not performing heroic measures when the situation is hopeless apply only to a goses/goseset or can it be applied at an earlier stage when a patient is declared incurable but not yet dying? (Rabbi Samuel Stahl, San Antonio, TX)
2. The 80-year-old mother of one of my congregants is choosing to starve herself to death. She says that her quality of life is no longer what she wants it to be – she is in a wheelchair but otherwise is in relatively good health for someone her age – and she simply does not want to live anymore. Should my congregant allow her mother starve herself to death, or should she intervene, for example, by ordering forced nutrition and hydration? (Rabbi George Gittelman, Santa Rosa, CA)
We have combined these two very different cases into the structure of one responsum, because both of them raise the question of our Jewish ethical obligations toward medical treatment of terminally-ill patients. That question, simply put, is one of cessation: under what circumstances, if any, is it permissible to discontinue medical treatment, or to refrain from initiating such treatment, for a person suffering from a terminal illness? We have addressed this subject on a number of occasions, most recently in our 1994 responsum “Treatment of the Terminally Ill.” The reader can turn to that responsum for an extended discussion of our position and of the traditional source materials upon which it rests. Here, we shall summarize that position, so that we can use it to help clarify the issues raised in each of our two cases.
Our 1994 teshuvah begins with a consideration of euthanasia and assisted suicide (often referred to as “physician-assisted suicide”) as responses to terminal illness. We reject both of those courses of action on Jewish as well as general moral grounds: to hasten the death of a person, even of a dying person and even out of compassionate motivations, is tantamount to bloodshed. While Jewish tradition permits us, indeed requires us to administer palliative care and pain control therapy to manage and to relieve the discomfort that the patient suffers, it does not regard euthanasia or suicide as legitimate functions of medical practice. On the other hand, Jewish tradition has long distinguished between “hastening death” (which is forbidden) and “removing an impediment to death” (which is permitted). Medieval halakhic sources permit the removal of any factor that is deemed to cause an unnecessary delay in the death of the goses (or goseset), one whose death is imminent. While those sources mention delaying factors not regarded as medical treatments, it seems plausible to extend this permit to the cessation of actual medical therapies that, at this very end stage of the patient’s life, no longer offer a reasonable prospect of “healing” but can serve only to maintain the patient in this moribund state. The difficulty with this line of thinking is that it does not address the situation of a patient who, though diagnosed as “terminally ill” by the consensus of medical opinion, has not yet reached the stage of gesisah, the very last hours or minutes of life.
Our responsum therefore suggests another conceptual framework for thinking about the treatment of the terminally ill. We begin with the definition of the mitzvah of refu’ah, the duty to heal (i.e., to practice medicine) as understood by Jewish tradition. That duty holds only when it is possible to accomplish it, that is, when the measures to be applied to the patient serve some accepted therapeutic purpose. It follows that if the drugs, surgeries, and other procedures do not serve such a purpose – if they lack what our responsum calls “therapeutic effectiveness” – they are not (or are no longer) regarded as “medicine,” as measures defined as obligatory under our duty to heal. Those procedures, to be sure, are not forbidden; the patient and the patient’s family may wish to accept them on the slim chance that they will do some good. But they are not obligatory because they are not “medicine.” The patient is entitled to refuse them or to discontinue them once they are deemed to have lost their therapeutic effectiveness.
We note in that responsum that the standard of “therapeutic effectiveness” is by no means simple to apply to specific cases, since “(t)erms such as ‘therapeutic’ and ‘successful treatment’ are inherently vague and impossible to define with precision. In many situations it will be problematic if not impossible to determine when or even if the prescribed regime of therapy has lost its medical value.” Some decisions concerning the non-application or discontinuation of treatment will indeed be difficult to make. On the other hand, “(t)he standard of therapeutic effectiveness, as a tool by which to make judgments concerning medical treatment, allows us to draw some conclusions with moral confidence.”
With the above in mind, let us consider our two she’elot.
1. The case of the lung cancer patient. This question raises for us the issue of how we apply the standard of “therapeutic effectiveness” (and its opposite, “therapeutic futility”) to a specific instance. The oncologist informed the patient that with the proposed treatment “there might be hope for remission” and that without it her life expectancy would be six months. Remission certainly falls under the definition of an “accepted medical purpose” in the treatment of cancer, and to the extent that there is a reasonable prospect that the treatment will lead to remission, we would judge the treatment to be medically effective. But did such a “reasonable prospect” exist? Judging from the information provided by the sho’el, the most that this patient could have reasonably hoped for from the treatment was a life expectancy of nine months. Hence the question: “was she morally obligated to pursue treatment which gave her an additional three months of life?” Our answer would be “no.” An additional three months of life, filled with the pain and discomfort of chemotherapy and radiation regimens, do not meet the standard of “an accepted medical purpose.” On the contrary: measures that would lead to this result are best understood as prolonging the suffering of a dying person, a result that would surely qualify as therapeutic futility. In our 1994 responsum, we wrote the following concerning the sort of “heroic measures” described in this case:
Medical science has made immeasurable advances during recent times, and we are thankful for that fact. Doctors today are able to prevent and to cure disease, to offer hope to the sick and disabled to an extent that past generations could scarcely imagine. Yet there comes a point in time when all the technologies, the chemicals, the surgeries, and the machines which comprise the lifesaving arsenal of modern medicine become counterproductive, a point when all that medical science can effectively do for a patient is to indefinitely delay his inevitable death. This is not pikuach nefesh; this is not medicine; this is not what physicians, as agents of healing, are supposed to do. There is neither meaning nor purpose in maintaining these treatments… They are not refu’ah; no commandments are fulfilled thereby. Yes, life is a precious thing, and every moment of it should be regarded as God’s gift. But we are not required under any reading of the tradition that makes sense to us to buy additional moments of life by undertaking useless and pointless medical treatment.
The patient would certainly have been entitled to accept the proposed treatment on the slight possibility that it might have led to the cancer’s remission. Similarly, should a patient see an additional three months of life as a positive good, as an opportunity for purposeful living, there is no reason why he or she should not choose to accept the treatment regimen. Our point here is to address the question of moral obligation as posed by our sho’el. One is obligated to accept treatment that offers a reasonable prospect of therapeutic effectiveness, the attainment of an accepted medical purpose. The purchase of an additional three months of life in a pain-filled and dying condition does not, in our judgment, meet that standard. If such was the best that this patient could reasonably have hoped for, she was not morally obligated to accept the treatment.
2. The Case of the Eighty-Year-Old Mother. This case demands that we consider the very definition of a “terminal illness,” the medical situation that raises the possibility of the withdrawal or cessation of medical treatment. This patient’s condition should not be defined as such; she is not “terminally ill.” Her confinement to a wheelchair does not pose a mortal threat to her. Although she is dissatisfied with her “quality of life,” she is said to be otherwise in good health. The choice to end her life would be defined as suicide and not the discontinuation of futile medical treatment. The fact that a person does not wish to live with a certain permanent disability does not render that disability a “terminal illness,” and it most certainly does not justify the self-destructive measures that this person contemplates. The proper recourse would seem to be counseling, psychological and pastoral intervention, rather than acceding to her expressed desire to starve herself to death.
On the other hand, while it is clear to us that this person is morally obligated to accept food and water, the question of forcing her to do so is not as easy to decide. As we note in a recent teshuvah, even though an individual is required by Jewish tradition to accept proven medical therapy, the administration of that therapy against the patient’s will may involve a degree of force and violence that would cause harm to the patient and rob the treatment of some or much of its therapeutic value. The same would be true of nutrition and hydration, whether or not we define these in the same category as “medical therapy.” Clearly, force feeding is an absolutely last resort, and the patient’s daughter and physicians must weigh the conflicting factors most carefully before authorizing such an extreme step.
1. Teshuvot for the Nineties (TFN), no. 5754.14, pp. 337-363, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=14&year=5754 .
2. The halakhic tradition defines the treatment of pain as an appropriate medical objective; R. Ya`akov Emden (18th-century Germany), Mor Uketzi`ah, ch. 328. The 20th-century Israeli halakhist R. Eliezer Yehudah Waldenberg holds that the treatment of pain is an appropriate medical objective even if it is “risky” (that is, if it involves danger to the patient’s life). Thus, for example, physicians may administer massive doses of pain medication, so long as the intent of the procedure is not to cause the patient’s death but to relive his or her suffering. (Resp. Tzitz Eliezer 13:87). See our responsum no. 5754.14 (note 1, above), at note 19, and R. Solomon B. Freehof in American Reform Responsa, no. 76, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=76&year=arr .
3. See Shulchan Arukh, Yoreh De`ah 339:2, which suggests that three days is the maximum limit of life expectancy for one who enters a state of gesisah.
4. TFN, no. 5754.14 (note 1, above), at section III.
5. The traditional term for such a therapy is refu’ah bedukah or vada’it, a “proven” or “certain” remedy, a course of treatment generally indicated by these symptoms and that offers a reasonable prospect of therapeutic success. See responsum no. 5754.14 (note 1, above), at notes 37-40.
6. CCAR Responsum 5766.3, “Hunger Strike: On the Force Feeding of Prisoners”, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=3&year=5766 , at notes 34-36.
7. For discussion, see TFN, no. 5754.14 (note 1, above), section V, “On Artificial Nutrition and Hydration.”
If needed, please consult Abbreviations used in CCAR Responsa.