RELIEVING PAIN OF DYING PATIENT

QUESTION:

A dying patient is suffering great pain. There are medicines available which will relieve his agony. However, the physician says that the pain-relieving medicine might react on the weakened respiratory system of the patient and bring death sooner. May, then, such medicine be used for the alleviation of the patient’s agony? Would it make a difference to our conclusion if the patient himself gave permission for the use of this pain-killing medicine? (Asked by Rabbi Sidney H. Brooks, Omaha, Nebraska.)

ANSWER:

LET US DISCUSS the second question first, namely, what difference would it make if the patient himself gives permission for the use of this medicine, though he knows it may hasten his death? There have been some discussions in the law, in recent years, of the difference it would make if a dying patient gave certain permissions with regard to the handling of his body after death. For example, he might ask for certain parts of the usual funeral ritual to be omitted; and some authorities say that he may permit autopsy. If I remember rightly, this permission was given by the late Rabbi Hillel Posek of Tel Aviv. But all these statements giving the dying man the right to make such requests deal with what shall be done with his body after death, but not any permission that he may give for hastening his death. After all, for a man to ask that his life be ended sooner is the equivalent of his committing suicide. Suicide is definitely forbidden by Jewish law.

However, we are dealing with a person who is in great physical agony. This fact makes an important difference. A person under great stress is no longer considered in Jewish law to be a free agent. He is, as the phrase is, onuss, “under stress” or “compulsion.” Such a person is forgiven the act of suicide; and the usual funeral rites, which generally are forbidden in the case of suicide, are permitted to the man whose suicide was under great stress. The classic example for this permissibility is King Saul on Mount Gilboa. His death (falling on his sword) and the forgiveness granted him gave rise to the classic phrase, in this case, onuss k’Shaul. Thus, in many cases in the legal literature, the suicide was forgiven and given full religious rites after death if he was under great stress in his last days. See the various references given in Recent Reform Responsa, pp. 114 ff., especially the example of the boys and girls being taken captive to Rome who committed suicide (b. Gittin 57b); the responsum of Jacob Weil, 114; of Mordecai Benet, Parashas Mordecai, Yore Deah 25; and the other responsa given in Recent Reform Responsa.

However, a caution must be observed here. The law does not mean that a person may ask for death if he is in agony, but that it is pardonable if, in his agony, he does do so. In other words, we must apply the well known principle in Jewish law, the distinction between l’chatchillo, “doing an action to begin with,” and b’di’avad, “after the action is done.” In other words, we do not say that “l’chatchilo it is permissible for a man to ask for death, but b’di’avad, if under great stress he has done so, it is forgivable.”

So far we have discussed the situation from the point of view of the action of the patient. Now we must consider the question from the point of view of the physician. Is a physician justified in administering a pain reliever to a dying patient in agony when the physician knows beforehand that the medicine will tend to weaken his heart and perhaps hasten his death?

Jewish traditional law absolutely forbids hastening the death of a dying patient. It requires meticulous care in the environs of the dying patient, not to do anything that might hasten his death. (All these laws are codified in the Shulchan Aruch, Yore Deah 339. See the full discussion in Modern Reform Responsa pp. 197 ff.) If, therefore, this were definitely a lethal medicine, the direct effect of which would be to put an end to the patient’s life, the use of such medicine would be absolutely forbidden. But this medicine is not immediately, or intentionally, lethal; its prime purpose and main effect is the alleviation of pain. The harmful effect on the heart of the patient is only incidental to its purpose and is only a possible secondary reaction. The question, therefore, amounts to this: May we take that amount of risk to the patient’s life in order to relieve the great agony which he is now suffering?

Interestingly enough, there is very little discussion in the classic legal literature, beginning with the Talmud, about the relief of pain. Most of the discussion deals with the theological question of why pain is sent to us and how we are to endure it and our attitude to God because of it. As for the paucity of reference on the relief of pain, that can be understood because, after all, in those days they had very little knowledge of opiates or narcotics. However, the Talmud does mention one pain-killing medicine which could be used in the ceremony of piercing the ear of a slave {Kiddushin 21b). This is the basis of all modern legal discussions as to whether an anesthetic may be used in circumcision. See Current Reform Responsa, pp. 103 ff. It should be noted in that responsum that most of the scholars agree to the permissibility of the relief of pain, at least in that ceremony.

But in the case which we are discussing, it is more than a question of relieving the pain of a wound or an operation. It is a question of relieving pain at the risk of shortening life. Now, granted that it is forbidden to take any steps that will definitely shorten the life of a patient (as mentioned above), may it not be permitted, in the case of a dying patient, to take some risk with his remaining hours or days if the risk is taken for his benefit?

This question may be answered in the affirmative. The law in this regard is based upon the Talmud (Avoda Zara 27a and b). There the question is whether we may make use of a Gentile physician (in that case, an idolater). What is involved is enmity on the part of an idolater toward the Israelite and the fact that the physician may, out of enmity, do harm to the patient. It makes a difference in the law whether the man is an amateur or a professional. The latter may generally always be employed. Also, the present state of the patient’s health makes a difference, as follows: If the patient is dying anyhow, more risks may be taken for the chance of his possible benefit. The phrase used for these last dying hours is chaye sha’a, and the general statement of the law is that we may risk these fragile closing hours and take a chance on a medicine that may benefit the patient, (cf. Shulchan Aruch, Yore Deah 154). See Modern Reform Responsa, p. 199, and especially the classic responsum on this subject by Jacob Reischer of Metz, Shevus Yaacov, III, 75. In other words, this is the case of a dying patient, and the law permits us, in such a case, to risk the chaye sha’a for his potential benefit.

However, this does not quite solve the problem. The law permits risking the last hours on the chance of curing the patient. But may we conclude from that permission the right to risk the last hours, not with the hope of curing the patient, but for the purpose of relieving him of pain? Interestingly enough, there is a precedent in Talmudic literature precisely on this question (see the references in Modern Reform Responsa, pp. 197 ff.). The incident referred to is in Ketubos 104a. Rabbi Judah the Prince was dying in great agony. The rabbis surrounded his house in con certed prayer for his healing. But Rabbi Judah’s servant (who is honored and praised in the Talmud) knew better than the rabbis did how much agony he was suffering. She therefore disrupted their prayers in order that he might die and his agony end.

In other words, we may take definite action to relieve pain, even if it is of some risk to the chaye sha’a, the last hours. In fact it is possible to reason as follows: It is true that the medicine to relieve his pain may weaken his heart, but does not the great pain itself weaken his heart? And may it not be that relieving the pain may strength him more than the medicine might weaken him? At all events, it is a matter of judgment, and in general we may say that to relieve his pain, we may incur some risk as to his final hours.