On Tuesday, August 18th, a panel of experts convened for an Agudath Israel CLE (Continuing Legal Education) symposium, entitled “Every Life is a Whole World,” on the delicate and often controversial topic of end-of-life care for the Jewish patient. During the intense, two-hour program, close to 100 lawyers absorbed potentially life-saving information, learning of New York State’s regulations on end-of-life care, of a patient’s religious rights, and the Orthodox Jewish view that every life is precious, regardless of its perceived quality. Armed with a more complete understanding of the medical and Halachic framework in which end-of-life decisions are made, participants left the event better prepared to fight for the rights of Jewish patients to extend and save their lives with appropriate end-of-life medical treatment which follows Jewish law (halacha).
The symposium was sponsored by Agudath Israel of America’s Commission on Torah Projects and the organization’s Legal Support Services and hosted by Allen and Overy LLP. The evening began with introductory remarks by Moyshe Silk, attorney at Allen and Overy and chair of the Legal Support Services, who explained that most deaths in the United States are due to progressive illness, and that most people, Jews included, are unprepared for end-of-life issues. About a quarter of the cases with Jewish patients are situated in the New York and New Jersey area, and these patients are being served by less than a handful of lawyers.
Mr. Silk also said that our society is preoccupied by the notion of dying “well”, which is fundamentally different than the Jewish view that one should die at one’s heavenly destined time.
Following Mr. Silk, Rabbi Chaim Dovid Zwiebel, executive vice president of Agudath Israel of America, noted that Agudath Israel formed Chayim Aruchim, the Center for Culturally Sensitive Health Advocacy and Counseling, as a separate division because so many cases were coming to the organization’s attention. “There was a need to sensitize the community to the Halachic issues surrounding end-of-life treatment and to the legal rights that patients and their families enjoy in end-of-life situations. It is very important that the families on the ground receive guidance — whether it be Halachic or practical.”
Besides its legal work and advocacy, Chayim Aruchim has trained a network of rabbis on the medical aspects of end-of-life care.
Dr. Marcel Biberfeld, vice president for psychiatry and community services at Maimonides Medical Center, spoke of the patient rights guaranteed by New York regulations. He quoted from the standards published by the Joint Commission for Accreditation of Healthcare Organizations, which require hospitals to identify a patient’s spiritual or religious beliefs that may affect their care, to allow them to consult a chaplain, to provide an area to pray, and to “elevate the role of the patient’s central decision maker and family during end-of-life care”.
Despite these standards, the regulations from numerous governmental bodies in New York State impose a cost on hospitals that may affect their decisions. For example, a regulation instituted in 2014 says that a patient has to be in the hospital for at least two nights in order to qualify for an in-patient rate. In addition, Medicaid and Medicare have changed the way that they reimburse hospitals. These financial pressures may lead hospital personnel to limit the length of hospital stays or reduce treatment, such as not giving the highest level of dialysis for a patient.
How should one deal with this problem? Dr. Biberfeld strongly advised that anyone being admitted to a hospital sign a Halachic Medical Directive. This legal document stipulates that one’s medical treatment be within the parameters of Jewish law. It also designates an agent to make medical decisions should one be incapacitated and a consulting rabbi for all Halachic decisions.
He added that it is essential to choose a doctor who shares your values.
Dr. Howard Lebowitz, chief medical officer of AcuteCare Health System in New Jersey, said that doctors don’t consciously think that they can’t treat a patient because it’s not cost-effective. Rather, we’ve created a culture where people think that taking care of patients is not the best use of scarce resources. Most cases do not involve brain death, but typically involve an elderly patient who has dementia and is now diagnosed with a potentially fatal sepsis infection. The question asked is how aggressively to treat that patient? He cited one case where a patient in a New York hospital was referred to hospice because he couldn’t maintain himself nutritionally. Instead, the man was transferred to Dr. Lebowitz’s hospital and after several weeks on a feeding tube, was able to return home and attend daily services at his synagogue.
He also advised the Jewish community to take a more nuanced view, and that a reflexive decision to resuscitate in all cases is not necessarily the right approach. “Your doctors in the ICU really want to do the right thing. They’re just uncertain as to what that is. With a sensitive approach and patience, we may be able to teach them.”
The keynote speaker was Rabbi Yitzchak Breitowitz, renowned rabbi, former law professor at the University of Maryland Law School, and senior lecturer in Yeshivas Ohr Someyach in Yerushalayim. Rabbi Breitowitz outlined the principles of Halacha that we must keep in mind: first, we are in favor of using technology to the degree that it helps the patient. Second, saving a life (pikuach nefesh) is of vital importance, even if the chance of survival is minimal and the patient’s autonomy is compromised. Third, sanctity of life is the determining factor in life and death situations, not quality of life. Finally, the obligation of refuah (healing) includes the duty to alleviate pain and misery.
Halacha does make a distinction between active euthanasia, which is forbidden under every circumstance, and passive withholding, which is not automatically permitted. He emphatically stated that each case must be decided individually by a competent rabbi.
Jonathan Rikoon, partner at Loeb and Loeb, reviewed the details of the Halachic Medical Directive, which he had a large hand in creating. He also explained the hierarchy that New York State law follows for deciding who will make medical decisions if the patient is judged medically incompetent.
The final speaker, Moishe Kurzmann of Kurzmann Law Offices, is often called in when end-of-life cases have become emergencies, usually with only 24 to 72 hours to prepare. In his experience, he said, doctors may dissemble the issue because of the culture clash.
He advised the attorneys in attendance to find out who’s in charge and why, and assign an assistant, who will keep track of what’s happening with the family. The assistant will be responsible for the legal thinking, writing and advocacy. “In a hospital ethics committee meeting, there is often skepticism of this advocacy. He suggested that it’s important to try to be as non-confrontational as one can while balancing the fine line between diplomacy and potentially aggressive advocacy.”
The packed program ended with a brief question and answer session. The program raised consciousness among lawyers, but the issues, complex and multi-layered, could have filled a two to three-day seminar. “I’m hoping that in follow-up programs, we’ll be able to build on the success of this program and equip lawyers both with the motivation and the background to save lives with their legal skills,” said Mr. Kurzmann.
Reflecting upon the evening and the importance of the issues presented, Mr. Silk said, “We are hopeful that this, and other seminars in the future, will inform and educate the legal profession in understanding the delicate relationship with Halacha and the law.”
Rabbi Avrohom Nisan Perl, national director of Agudath Israel’s Commission on Torah Projects, said, “The whole point was to sensitize professionals to live their lives according to Halacha while at the same time helping their fellow Jews… A lot of lawyers there were never exposed to end-of-life issues. If one lawyer helps one family overcome the obstacles that they face in an end-of-life situation, then this whole conference was worth it.”
He noted that Agudath Israel is planning more of these sessions, which will be announced in October.
Rabbi Zwiebel said, “Seeing this crowd come out today for this seminar is particularly gratifying and gives us a sense of the grassroots, communal support that is critical as we move forward in this area.”