Rabbi Moshe Mordechai Farbstein

Rabbinic Court, Netanya

Rosh Kollel Imrei David

Psychiatry and Halacha

Psychotics and Retarded Persons

1.1 The definition of shoteh (psychotic)

       In halacha, the word shoteh is not synonymous with "mentally ill" but refers to one whose mind is confused and whose processes of thought or conduct are adversely affected. This confusion is likely to arise from various causes: mental illness, a “bad spirit,” brain damage, diseases of old age, or other causes.

       The cause makes no difference in halacha, which takes no account of the cause of the idiocy, merely of the effects. For example, someone suffering from depression is not called a psychotic unless the illness causes confusion of thought or conduct.

       Obviously, not all confusion of thought or conduct acquires the title of “psychotic.”  A person is only so described if his confusion reaches a certain level. When mental confusion occurs over a wide range of thought and conduct, the halachic authorities define him as a "complete psychotic" (shoteh gamur) or simply as a "psychotic" (shoteh). When mental confusion applies only to thought and conduct within a specific limited sphere and in other matters he behaves normally, he is called "psychotic for a specific thing."  In addition, one who is mentally ill but has periods of calm and normality is not considered as a psychotic during those periods of calm, even though his illness still persists and at times affects him severely.

       Halacha distinguishes clearly between a psychotic (shoteh) and a retarded person (peti).  The former is, as stated, one whose mind becomes confused. The latter is one who is mentally retarded, of very low intelligence, who is unable to function as an intelligent person. (See Sefer Meirat Einayim, Choshen Mishpat 35:21)

       In extreme cases both the psychotic and the retarded person are without doubt considered as people without intelligence.  When the mental illness of a psychotic reaches such a degree that he does not relate to his environment and his mind is utterly confused, he is clearly in no way responsible for his actions. In such a situation halacha makes no distinction as to the cause of the illness.

       This axiom requires no proof. We may take an example from the responsa of Ateret Chachamim (§18), in a case where the questioner wanted to distinguish between confusion arising from differing causes, claiming that if it arose from depression the patient should not be considered a psychotic. The rabbi who responded rejected this view, and wrote:

“Regarding his claim, that if the illness arises as a result of what we call melancholy the patient is not a psychotic, this does not appear to be the case. The term “melancholy” is applied also to complete lunatics, as is known to anyone who is even slightly acquainted with books on the subject. If a person who suffers from melancholy has reached a stage where he habitually behaves stupidly in a way that indicates mental aberration, he is certainly psychotic; whereas if he does not behave in this way, but simply isolates himself from the company of human beings and prefers to sit alone in the dark, then he is not considered a psychotic. Everything points in the same direction: if someone is seen to be incoherent and mentally confused, then he is considered a psychotic regardless of the cause."

       It is interesting to note that this leading halachic authority, relied on medical literature available in his time. However, instead of taking the medical definition of the illness, he concerned himself only with the degree of severity of the illness as expressed in the patient's behavior. Thus he set out the principle that the criterion for defining a psychotic in halacha is the degree of the illness and not the category in which it falls.

       The same applies to a retarded person: when someone is severely retarded there is no room for discussion regarding his status in halacha, he is clearly without responsibility.

1.2 Cases that are Less Clear-cut

       The problem in defining the psychotic in halacha is where the cases are not clear-cut.

       Halachic literature includes hundreds of responsa that deal with cases of various types of mental illness of different degrees of severity, such as states of depression and mania, terror in differing degrees, megalomania, and various other disorders. For the purpose of the current discussion we will confine ourselves to three states of mental confusion which are not all that extreme or clear-cut.

    (a) Various psychiatric disorders which are expressed only in one specific matter, in a clearly defined sphere of behavior, where the person concerned appears to behave perfectly normally and rationally in all other matters.

    (b) A person who is partially retarded and possesses a limited degree of understanding and discrimination.

    (c) A temporary disorder arising from an external cause, such as the influence of drink and drugs.

       Initially, a correct diagnosis is required, and the type of effect, its scope and its degree of severity must be determined. This is where it is obligatory for the rabbi and the doctor to meet.

       The first case that we will consider is that of the “psychotic in one respect only,” where the psychosis is expressed only in a defined sector of conduct while in all other matters the person appears to behave perfectly normally.

1.3 A Psychotic in One Respect Only

       The responsum of Rabbi Mordechai Kimchi, written seven hundred years ago contains one of many such descriptions to be found in halachic literature:

"For the past two years he has been perpetually troubled by imaginary disorders. He imagines that there are men inside his stomach, and they frighten him. As a result, he abstains from three things: from eating meat, from drinking wine, and from sleeping on a bed. He believes that meat and wine will increase his illness, and that if he sleeps on a bed the men inside his stomach will terrify him, so he sleeps on the ground or on benches. In all other matters his mind is not confused, only in these.  He asks questions intelligently and gives intelligent answers on all other issues (Responsa of the Sages of Provence §57).

       Opinions differ regarding the halachic attitude to "a psychotic in one respect only.”  We will consider two basic attitudes.

       The first is more strict and considers one who has a disorder and confusion with respect to one issue as being a psychotic in all respects. Even if on careful examination he is found to understand and behave normally with respect to all other matters, he is still  considered psychotic.  The outstanding proponent of this attitude is Maimonides, who wrote:

"Not merely one who walks about naked, smashes utensils or throws stones is considered a psychotic; anyone whose mind is disordered, and is regularly confused over a particular matter, even if he talks and asks questions intelligently in other matters, is disqualified [from giving evidence in court] and is placed in the category of psychotics (Laws of Evidence 9:9).”

       The other attitude considers that such a person needs examination, and may possibly be considered normal. The fact that he is affected or confused in one matter is sufficient reason to demand that he be checked thoroughly to see to what extent his disorder applies overall; but if examination shows that he is only affected in a
limited sphere and in other matters he is intelligent and behaves normally, he is treated as an intelligent and responsible person. The outstanding exponents of this attitude are the Tosafists, who wrote:

"Since he is a psychotic in one respect, we must certainly presume him to be a psychotic in all matters" (Tosefot  Chagiga 3b, s.v. derech).

       Tevuot Shor (Yoreh Deah 1:11) explains the statement "we must presume him to be a psychotic in all matters” to mean that when he acts psychotically in one matter and we are unable to examine him thoroughly, then we must assume that he is a total psychotic in all matters until proved otherwise; but if we examine him and show that in other matters he is of normal intelligence, asks questions and answers intelligently and speaks intelligently, then he is not considered a psychotic.

1.4  A Psychotic in One Respect Only

       A possible explanation of the approach, which considers a psychotic in one respect only to be halachically psychotic, is that when a person's mind has become confused over one matter, even if he appears to speak and behave normally in other matters, we cannot rely on his sanity. This is because we cannot know what stupid thoughts are turning round in his head at that time, and what in fact motivates him, these being matters that cannot be discovered by examination. This approach regards the process of thought and of the soul as one entity, and believes that it is impossible to prove that the damage is limited to one detail. The proponents of this approach are the above-mentioned rabbis of Provence who decided that the patient in question was a psychotic and therefore unable to divorce his wife, since:

"In defining the psychotic referred to by the Rabbis of the Talmud, we do not go by the way his mind works in other matters, but once one of the varieties of melancholy has continuously seized him, even if he speaks sense and behaves normally, he is presumed to be a psychotic.... Even though we see him apparently sane in other matters, we do not rely on the clearness of his intelligence, and from his behavior we may prove concerning his thoughts that whatever he thinks and says is from a confused mind.... Therefore we do not examine psychotics...."

       (There is still a need to clarify why, according to this approach, he is considered a definite psychotic, and not just a possible psychotic.)

       An alternative explanation of this approach is that examination and diagnosis of the person's mental state in other matters is irrelevant. Simply put, his status is defined as that of a psychotic because that is the definition of a psychotic in halacha. This brings in a new concept in halacha, with many halachic implications about which a great deal of material has been written.

       This approach also regards the person as a complete entity, but from a halachic point of view and not from a medical one. It considers that there is no such thing as a partial psychotic, one who is a psychotic in one respect only is a total psychotic for all matters, even where he acts normally. Examination is impossible, since even where he understands he is treated in halacha as a psychotic. This is expressed in the responsa of Oneg Yom Tov (§153):

"The reason is not because if we see him confused in one matter we suspect that he acted without knowing ... but that one whose mind is occasionally confused in one matter is not called sane in laws of Torah."

       Many other leading authorities have concurred with this view, among them Rabbi Y. Assad and Rabbi Aaron Kotler.  

1.5 The Severity of Idiocy in One Respect Only

       It is important to stress that in halachic discussions the authorities also deal with the type of disorder and with its severity.  Noda Bihudah (Be'ur Hayashar 34) claims that a psychotic in one respect only is not considered psychotic unless the disorder is sufficiently serious that it causes him to act psychotically.  In other words, that it causes a functional disorder. However, if the disorder is expressed merely in speech, and in other matters he can talk normally and rationally, he is not considered a psychotic at all. The comment of Beit Yitzchak is interesting:

     "Anybody is liable to have strange ideas, but one who has enough sense does not express these in his speech, and until he puts his thoughts into practice he is not considered as a psychotic (Even Ha'ezer 2:4).”

       To determine the criteria for defining one who is sick in one respect only as a psychotic, the authorities utilize the symptoms stated in a Baraita quoted in the Talmud (Chagigah 3b):

"Who is a psychotic? One who goes out alone at night, or who spends the night in the graveyard, or who tears his cloak."

       Another Baraita adds the symptom "or who destroys that which is given to him." The authorities interpret the Baraita to mean that for a person to be classified as a psychotic, he must perform acts of idiocy at least as bad as those mentioned. They therefore decided, in the famous case of the divorce at Cleves, that one who suffers from groundless fear is not considered psychotic unless his fear leads him to act abnormally, and if his fear led him to emigrate to another country this is not sufficient to classify him as a psychotic.

1.6 Summary 

       There are two basic views. One accepts the possibility that a person may be affected only in a specific sphere and be normal in respect of all other matters. Such a person must undergo a thorough examination, but if as a result it is shown that his disorder is limited then in all other matters he is treated as a normal person.

       The other view does not accept the idea of a person being partially affected. If a person is severely affected such that normal functioning is affected and he acts in a way that indicates severe mental confusion, then no notice is taken of an examination even if it tends to show that in all other matters he is intelligent and understands exactly what he is doing. The reasoning behind this view is either the assumption that an examination cannot prove that the patient is only affected in one detail, or the fact that the halacha relates only to a person as a whole and one who is a psychotic in one respect only is nonetheless considered as a total psychotic even if his behavior in other respects is normal.

       The conclusions of our discussion appear together in a responsum of Beit Yitzchak (Even Ha'ezer 2:4):

            "We examined the man a number of times, and talked to him, and he answered all our questions intelligently.... But he had a fear of demons and kept saying every now and then: ‘Blessed is His royal honored name for ever and ever!' When we asked him  why he kept saying this, he replied that the demons kept inciting him to say wicked things, confused him with wicked thoughts, incited him to say seven abominations, and once incited him to say ‘dust and ashes,’ but as he had no wish to obey them, he said on each occasion ‘Blessed is his royal honored name for ever and ever!’"

       The author gave his decision to allow the man to divorce his wife for the following reasons:

· the idiocy was not as great as the examples given in the Talmud;

· the man did not perform any psychotic actions, only spoke psychotically;

· many consider that a psychotic in one respect only is not treated (in halacha) as a psychotic.

       Here we have an example of a halachic decision that is arrived at by combining various legal concepts, including the state of the patient, the manner in which the disorder is expressed (thought, speech or deed), and the halachic definition.

The Retarded Person

2.1  The Degree of Retardation

       As we said, our discussion is concerned with partial retardation in which there is a limited degree of intelligent discrimination. We wish to define the degree of intelligence that the halacha demands of one who is retarded for him to be considered in control of his actions. We also wish to find the similarities and differences between the psychotic and the retarded person. Specially in this matter is the estimation of the judge or the adjudicating rabbi important, as Maimonides stressed:

"This has to be according to the way the judge sees it, since we cannot direct him in writing." (Laws of Evidence 9:10, and see Responsa Or Sameach §12)

         One approach to determine the criteria by which a retarded person is to be classed together with the psychotic is by comparing the level of intelligence of the retarded person with various levels of intelligence found among children between six and ten (Talmud, Gittin 59 a).

   The Early Authorities (Rishonim) disagree as to the interpretation of this. Rabbenu Asher (Rosh) and his supporters claim that the requirement that the child be especially bright applies only till he reaches the age of ten. From that age on, he is considered to have reached the level of intelligence even if he is not especially bright. (This seems to imply that the intelligence required is that of an average child of eight, but the matter still needs clarification.) Maimonides (Laws of Sale 29:6) however maintains that a child is only considered to have reached the level of intelligence if he is especially bright, even up to the age of adulthood (twelve or thirteen).

       Those authorities who decided to compare the intelligence level of the retarded person to that of pe'utot use the general definition of intelligence and the intelligence limits of a child, from which they have deduced the intelligence limits of the retarded person. This is a vast subject beyond the scope of our discussion.

       An alternative method is to use Maimonides's definition of a retarded person (peti), whom he distinguishes from the psychotic (shoteh) as follows: the latter is one who is out of his mind, the former includes various types who are retarded (which he considers in section 10):

"The worst type of retarded person does not recognize things that contradict one another, and does not understand matters the way other simple people do" (Laws of Evidence, 9:9-10).

       Maimonides takes as his criterion the level of thought. He defines the degree of retardation of the "worst type of retarded person" as "not recognizing things that contradict one another," but this definition still requires explanation as to its level of thought. Is Maimonides referring to those who do not know the difference between "yes" and "no," between one thing and its reverse? If so, the definition is very narrow, so that the retarded include only those with extremely low intelligence. Or does he mean those who cannot distinguish between things that require a higher level of discrimination and intelligence? If so, the definition is very broad, since the retarded include those with a certain degree of intelligence.

       The authorities have shown that Maimonides followed the broader definition, and an evaluation of simple daily actions is insufficient to exclude someone from the definition of a retarded person:

"It is obvious that such people are worse than the deaf[1] and the psychotic, and Maimonides did not have to state this. He meant that they do not understand things that contradict one another in matters where intelligence is necessary to understand and distinguish between positive and negative, and these people cannot understand in the way other people can (Get Mekushar Bula 15).”

       Oneg Yom Tov (153:5) also proves that according to Maimonides,  a person is excluded from the category of retarded persons if he has understanding "in matters that require a mind to understand," or as we would express it today, if he has a level of intelligence that enables discrimination at a much higher level. This too is a point at which the rabbi or judge needs to meet the physician or psychologist who is making a diagnosis.

2.2 The Legal Status of a Retarded Person

       The authorities in general agree on this definition of a retarded person, but disagree regarding his status in halacha. Some consider him to be a psychotic in all matters, i.e. his actions have no legal standing, and he is exempt from all duties (mitzvot). (See Get Mekushar, ibid.) Maimonides appears to have written just that:

"The worst type of retarded persons, who do not recognize things that contradict one another, and do not understand matters in the way that other simple people do ..... are included among psychotics."

       Others however consider that the retarded person is not considered as a psychotic, but must be evaluated in respect to whatever matter we are considering.  If examination shows that he understands the simple meaning of his actions, then his actions do have legal standing. These authorities understand Maimonides's words that such people "are included among psychotics” to refer only  to their qualification to act as witnesses in court, but not to other matters. This is the opinion of Maharit (Even Ha'ezer 16).

       Maharik (New Responsa 20) considers that a retarded  person is not considered a psychotic, and even a minimum of intelligence is sufficient to establish his actions as legally valid. He gives an interesting reason for this: 

"But if one is sane and speaks rationally, but does not understand various things as well as other people, it appears to me that his actions are acceptable because we must have some criterion by which to determine in what matters he is considered sufficiently intelligent and in what matters not; after all, there are those who are more intelligent than others, and those who are less so.  Some grasp things very quickly at the age of six or seven, others take a lot longer, and not all people have the same intelligence. All we have to go on is the definition of a psychotic given by the rabbis in Talmud Hagigah ...."

       In the opinion of Maharik, the impossibility of determining a clear criterion for the required level of intelligence is sufficient to decide that the retarded person is not a psychotic, and even a minimum degree of intelligence is sufficient to render his actions valid. The question then arises as to what level of intelligence is required to give his actions legal validity. Here too, the discussion concerns the level of thought required with respect to the particular action.

       Oneg Yom Tov (ibid.) considers that it is sufficient to have a level of intelligence such that he understands and appreciates the meaning of his actions. Judgment is not required. The case he was considering was of "one whose speech is hard to understand, such that even people who are used to him do not always understand what he is saying; his intelligence is very weak so that he does not understand all the things that people normally understand, but only things that he is most used to; he does not understand things fully, has a very limited understanding of buying and selling, and does not know how to count." This description clearly refers to one who is unable to exercise judgment or to understand matters that "require a mind to understand," and Oneg Yom Tov gives his legal decision:

"This man's marriage is valid, since we see that he can buy something that he is used to buying in the market, and a retarded person is considered normal in matters which he can understand when they are explained to him. However, we do have to clarify what a person wishing to get married or divorced needs to understand, without which understanding the marriage is invalid, and to check that we are able to explain these matters to this particular retarded person."

       Maharik, whom we have quoted above, also considers that a minimum of intelligence is sufficient to validate the actions of a retarded person.

       We will not enter into the fundamental question: "If that is the case, what is the difference between a retarded person and a partial psychotic?" This question deserves a discussion in itself.

2.3 The Retarded Person's Obligations Regarding Mitzvot

       A psychotic is exempt from duties and obligations (mitzvot).  Hence the question of whether or not a retarded person is exempt depends on whether he is considered a psychotic.  According to those who place the retarded in the same category as a psychotic, the retarded person is exempt from duties and obligations, but according to those who disagree with this, he is under an obligation to observe mitzvot.

       Just as a retarded person's actions are legally valid only when his level of intelligence allows him to understand those actions, so, obviously, it is necessary to determine the level of intelligence required for him to be obliged to observe mitzvot. We also need to discover whether a particular retarded person is or is not obliged to observe all mitzvot or if, just as we judge each action individually to determine its validity according to whether or not he understands what he is doing, so we consider each individual mitzvah in relation to his intelligence. In the latter case he would be liable to observe only those which he understands, and would be exempt from those he is unable to understand.

       This problem appears to depend on whether or not the Torah applies a partial obligation with respect to its duties. The Later Authorities (Acharonim) have considered this question in relation to a person who is a psychotic in one respect only, and disagree as to whether the Torah can put an obligation on him with respect to mitzvot in a sphere in which he is not a psychotic. However, we will see that there is a difference between a partial obligation to observe mitzvot in the case of a retarded person and a partial obligation in the case of a psychotic in one respect only. This depends on the basis of the obligation (if there is one) for a retarded person to observe mitzvot, as we shall see.

       The psychotic is exempt from observing mitzvot, not because he lacks the intelligence to understand them and thus to observe them, but because he is not commanded to observe them; one who is not perfectly sane does not have choice, and therefore cannot be commanded to do anything. Maimonides expresses it as follows:

"Since they are not responsible, they are exempted from all the mitzvot of the Torah."

       The psychotic is exempt because he lacks responsibility. On this basis, the retarded person’s obligation to observe mitzvot does not depend on his ability to understand, but on whether he is regarded as responsible for his actions. In other words, is his level of intelligence sufficient to classify him as a responsible person? (The responsum of Diverey Chayyim, §74, implies clearly that the duty to observe mitzvot depends on the ability to weigh up a situation, i.e. to make a choice, and not on understanding.)

       It follows that a retarded person cannot be obliged to observe only certain mitzvot.  If he is a responsible person he is obliged to observe them all, and if he is not he is exempt from them all.  In contrast, a psychotic in one respect only may well act irresponsibly in one particular matter, while being held responsible for his actions in all other matters.

       The problem here is that those who do not regard a retarded person to be the same as a psychotic, and who give his actions some legal validity expect even the worst type of retarded person to observe mitzvot. Yet his judgment is clearly impaired, in which case an obligation cannot be imposed on him.

       Furthermore, an obligation to observe mitzvot implies not merely the ability to observe them but also the imposition of punishment for transgression. An obligation to obey a commandment does not make any sense unless it is accompanied by punishment for failure to obey. Such punishment can only be imposed on a person who is able to make a judgment regarding his actions, who is able to form some appreciation of the implications of his actions; it is not sufficient that he merely understand what he is doing. Even where a retarded person understands what he is doing, his judgment is clearly impaired and he cannot be punished, so for this reason alone he should be exempt.

       Rabbi S. Z. Auerbach was once asked to define the degree of understanding above which a retarded person is obliged to observe mitzvot. His reply was that if he knows that G‑d gave the Torah and understands that the mitzvah is among his commandments, he is considered sufficiently intelligent. Likewise he wrote (Minchat Shlomo §34):

"It appears that as long as he has the intelligence level of a child and knows that G‑d gave us the Torah and we obey his instructions (mitzvot), he is considered an intelligent person with respect to observance, and on reaching the age of thirteen he is considered to be an adult."

       His words are not easy to understand. According to those who treat a retarded person like a psychotic, either he has the level of intelligence "to understand matters that contradict one another" in matters that require intelligence and understanding, in which case he is like a fully intelligent person in all respects; or he does not have that level of intelligence and is considered as a psychotic with respect to all the laws of the Torah. According to those who do not treat a retarded person as a psychotic, understanding is not sufficient; he needs in addition the ability to form a judgment and make a choice, as we have shown from the words of Maimonides. I in fact asked Rabbi Auerbach about this, and he agreed that the words of Maimonides do indicate this.

       Rabbi Auerbach went further. He wrote that the intelligence required to be obliged to observe is not necessarily the same as that required to deserve punishment. A retarded person may possibly be considered as intelligent for performing mitzvot but unintelligent with respect to punishment. His words are:

"...whereas regarding punishment, just as there is mercy on a minor, so a retarded person is considered as a minor in this respect, even though he is in fact an adult."

       This is also difficult to understand. The level of intelligence required to impose an obligation to observe mitzvot must be the same as the level of intelligence required with regard to punishment since the obligation to observe also arises from the ability to choose between right and wrong, and we have already explained that there can be no obligation to observe unless accompanied by reward or punishment. Rabbi Auerbach's assumption that a retarded person can be considered as intelligent when it comes to observance but not when it comes to punishment is hard to understand.

       The issue of the requirement of a retarded person to observe mitzvot still needs clarification, which is outside the scope of our discussion.

3. Drunkenness and the Influence of Drugs

       The term "drunk" includes different states, from being slightly tipsy to being utterly bewildered. The law depends on the degree of drunkenness.

            We have not found any reference in the sources to mental confusion as a result of the effects of drugs, but they can clearly be deduced by analogy from the laws concerning the drunk, and not from those concerning the psychotic. Alcohol may be considered as a drug, and it makes no difference in halacha which drug is the cause of the state of confusion of the person concerned. The laws concerning one who is drugged will therefore be the same as those concerning a drunk.

3.1 Degrees of Drunkenness

       Halacha recognizes two levels of drunkenness: one who has reached the drunkenness of Lot, and one who has not reached the drunkenness of Lot. The Talmud (Eruvin 65a) quotes a Baraita:

"A drunk's purchase is a purchase, and his sale is a sale. If he commits a sin for which the penalty is death, he is put to death. If it involves corporal punishment, this is imposed. He is considered as a normal responsible person in all respects, except that he is exempt from praying. Rabbi X said that this applies only when he has not reached the degree of insobriety of Lot; when he does reach that degree of drunkenness, he is exempt from all of them."

3.2  The Insobriety of Lot

       The Early Authorities have given different definitions of the state referred to as "the insobriety of Lot."

       (a) A drunk who has no idea whatever of what he is doing.

       The Torah states that Lot "was unaware of her lying down and of her getting up (Gen. 19:33),” implying that he did not know what was happening to him. This state is described today as "automatism." Maimonides gave a similar definition (Laws of Sale 29:18):

"When someone reaches the degree of insobriety of Lot, so that he is a drunk who does not know what he is doing, his actions are invalid, and he is like a psychotic or a child less than six."

       This assumption is surprising. Is such a high degree of confusion required in order to consider a drunk to be like a psychotic? There is a state in which a drunk is aware of his actions, but his mind is so confused that he is quite unaware of the consequences of his actions. A number of later authorities have queried Maimonides's statement, including Get Mekushar (Bula 16:1).

       (b) A drunk who is unaware of the consequences of his actions.

       Some consider that a drunk who does not appreciate the consequences of his actions, even though he is aware of what he is doing, is also included in the “degree of insobriety of Lot.” His actions are invalid, and the same applies with regard to punishment. A drunk is not liable to punishment if he was not aware of the consequences of his actions at the time of his sin. Get Mekushar explains this theory at length (16:1), and sums up as follows:

"If a person is so drunk that he cannot discriminate between right and wrong, and does not realize what damage his action may cause, even if he is aware of what he is doing, he has reached the degree of insobriety of Lot since his drunkenness has reduced his awareness."

3.3 Test of Sobriety: Understanding or Judgment?

       The second opinion requires clarification since it gives as a test of sobriety the drunk's awareness or understanding of his action and its immediate consequences, and not his ability to form a judgment based on long-term consequences so that a drunk may be considered as well-balanced even though it is clear to us that if his mind were clear he would not act the way he did.

       Maimonides decides the law as follows:

            "The marriage performed by a drunk is valid, even if he is very drunk."

       In other words, although he is very drunk, as a result of which his judgment is clearly impaired and he does things that he would never dream of doing were he sober, his actions have legal validity, and the woman is married to him! In the responsa of Penei Moshe, following the decision of Maimonides, we find:

     "Since he knows what he is doing, even if it is something he would not do if sober, his marriage is valid and his divorce is valid, even if he is very drunk."

Similarly, Get Mekushar (ibid.):

"On the other hand, if his drunkenness did not reduce his awareness, but that in his drunkenness he was tempted to commit a sin and was overcome by temptation, or he married a woman whom he already knew very well and considered unsuitable but nevertheless married her because at that moment he fancied her and was willing to marry her, or he sold or bought something as a result of a sudden temptation caused by his drink, although he knew that later he would suffer damage or loss as a result, or in any similar case - since he knew what he was doing and was aware of it, even though he would not normally have done it without the temptation of drink, he has consciously caused himself a loss, and his sale is a sale, his marriage is valid, etc., and where applicable corporal or even capital punishment is imposed, since he was aware that he was risking his life and did not restrain himself."

       There is an innovation here. If a person's actions are to be legally valid, or if he is to suffer punishment, it is insufficient for him to be aware of what he is doing; he must also have sound judgment. The test of sobriety should include not only that he is fully conscious, but also his ability to judge. This matter still requires clarification.

3.4 Summary

       Halacha distinguishes various degrees of drunkenness:

(a) One who is not aware of what he is doing. His actions have no legal validity, and this is called "the insobriety of Lot."

(b) One who is unable to distinguish right from wrong and does not appreciate the immediate consequences of his actions. Here too, his actions have no legal validity, and this too is called "the insobriety of Lot."

(c) One who is aware of the immediate consequences of his actions, but is unable to judge whether or not to do something and does it without weighing the effect at all. Whether or not this is included in "the insobriety of Lot" requires clarification.

(d) If he is able to form a judgment, but insobriety has affected the judgment that he makes, he is not considered to be like Lot, and he is treated in all respects as if he were sober.

       The conclusion is that alongside clear-cut instances where a person is inherently irresponsible and his actions have no legal validity, there are situations in which halacha regards a person as a psychotic without taking into account his intelligence and understanding with respect to the specific case under consideration. This applies to a person who is a psychotic in one respect only, according to Maimonides and those who support him, and also to one who is mentally retarded, according to those who consider that he is treated as a psychotic.

       On the other hand, a person's understanding in a particular situation may be impaired, but if the damage arises from an external cause such as drunkenness, he is not regarded as a psychotic and his actions have legal validity.

       It is worth reiterating that it is still necessary to consider in what respect a person is labeled as a psychotic. Does this apply to all matters? Or are the laws different with respect to (a) his obligation to observe mitzvot; (b) the consequences in civil law of matters such as sale and purchase; and (c) marriage and divorce, and similar matters.

4. Compulsory Treatment for the Mentally Ill

       A person is master of himself and of his actions, and nobody has any right to force another to perform any action, or to forcibly prevent him from performing an action that he wishes to perform as such compulsion is an infringement of his mastership.

       Likewise, depriving a person who is able to work of his freedom is considered as causing damage. One who locks another in a room against his will is considered to have caused injury and must pay unemployment benefit to the extent of the victim's loss of earnings (see Talmud Bava Kama 85b, and Rabbenu Asher ibid. §3.)  It is therefore necessary to clarify under what conditions one may restrict the freedom of a psychotic and force him into an institution (such as a hospital), and likewise under what circumstances one may compel him to submit to medical treatment.

       There are two possible justifications for putting someone who
is mentally ill into an institution and for providing compulsory medical treatment: to protect society from the patient, and to protect the patient himself. The following discussion centers around forcibly putting someone in a hospital and forced medical treatment.

       The question of forced medical treatment, as against a person's being master of his body, arises not only in the case of the mentally ill (see Mor Uketsiah Orach Chayyim §328).  In a case of life and death, for instance in  a case of danger of suicide, just as any other sick person may be forced to accept treatment (Mor Uketsiah ibid.), so one who is mentally sick may be forcibly treated for his illness. The same applies to restraint in an institution for the purpose of protection.

       However, when no life is at risk, a normal person may not be forcibly given medical treatment because everyone has the right to decide for himself whether to be cured or to remain ill for the rest of his life. For instance, if a person is suffering from a cataract in the eye nobody would force him to undergo an eye operation. However, with the mentally sick there is another aspect to the question of forcible treatment.

       In general one who is physically ill does not suffer from any basic impairment of his judgment and his ability to make decisions regarding his life and health.   In contrast, a mentally sick person has impaired judgment.

       When the impairment is severe and his mind is utterly confused, he may be given whatever treatment is considered necessary for his own good on the assumption that were his mind clear he would certainly agree to such treatment; the principle that one may do something to someone's advantage in his absence applies here. But where the confusion is only partial, there are arguments on both sides to take into account.

       We have discussed elsewhere that at times, even when a person is treated as a psychotic and his actions have no legal validity, he has some intelligence to the extent that his wishes are meaningful, and these must be taken into consideration and given appropriate weight. The psychotic's wishes regarding medical treatment must therefore be taken into consideration. However this clearly applies only when it is obvious that any refusal to accept treatment is not a result of the illness itself. For instance, a patient may refuse to accept electric shock treatment out of fear that it may affect his memory, or he may be afraid of a general anesthetic on account of its possible effects.  Such fear is normal in a mentally healthy patient. But where the refusal to accept treatment is itself part of the illness, as often happens with the mentally ill, his wishes are to be respected only if they are “healthy wishes” and not nonsense.

       There is still room to consider the case of a psychotic who refuses to be cured of his psychosis, in a case where he is not legally considered to be a psychotic and all his actions are legally valid, or where he is a psychotic in one respect only, according to those who accept that concept. An example is one who suffers from a persecution complex but is quite normal in all other respects. He refuses to accept treatment because in his opinion he is not ill at all and his thoughts of persecution are not an illness but genuine. The issue may be put in the following way:

       When a responsible-minded person refuses to accept treatment, even if his refusal is a mistake, illogical, and liable to cause him injury and additional suffering, he may not be compelled against his will to submit to treatment. The maxim that one may do something for someone that is to his benefit in his absence (i.e. without his knowledge) is based on the assumption that if he knew he would consent. There is no maxim that something may be done for someone that is to his advantage against his will. A person's wish must therefore be taken into account, even if his wish is at fault. If a psychotic in one respect only is considered to be responsible in all matters, no treatment may be forced
on him even though his refusal is at fault and arises from his psychosis.

       Or perhaps we should distinguish between a mentally healthy person who is wrong and a psychotic in one respect only? Even those who consider that the latter is not treated as a psychotic in all respects agree that in that particular respect he is a psychotic and treated as such (see Nodah Biyehudah, Sha'agat Aryeh and responsa Or Hayashar), in which case his refusal is meaningless.

5. A Mentally Ill Mother

       Where continuation of pregnancy is liable to endanger the mother's life, her life takes precedence over that of the fetus and the pregnancy may be terminated. But the cases where continued pregnancy and birth pose a real threat to the mother's life are rare. In practice, the reasons for requesting an abortion are where there is a fear  that the child has a hereditary disease or where the mother is not competent to look after her offspring and the care of the latter will fall as a burden on the community.

       The halachic authorities are inclined not to permit an abortion in such cases, and they are even more strict where the mother is mentally sick, because at times there is no sound basis to her request for an abortion.

[1]     In Talmudic literature, “deaf” is used to mean someone who is born deaf and has never learned to speak, is unable to communicate properly and to learn, and is thus in practice put into the same category of the mentally deficient.