The Dying Patient Law, 2005*
Translated by Vardit
Ravitsky, Ph.D. and Adv.
Michael Prawer
Chapter 1: Goal and Fundamental
Principle
Goal 1. (a) This Law regulates
the medical treatment
of the
terminally ill patient based on an appropriate balance between the value of the
sanctity of life, the value of the individual's autonomous will, and the
importance of quality of life.
(b) This Law is based upon the values of the State of Israel as a
Jewish and democratic state and on fundamental principles in the realm of
morality, ethics and religion.
Fundamental
2. In prescribing the medical treatment of the Principle terminally ill patient, his medical condition, his
will and the degree of his suffering
are the exclusive considerations.
Chapter 2: Definitions
Definitions 3.
In this Law:
“A close person” - A
person who, in the view of a responsible physician, pursuant to the directives
of the Minister under section 60(a)(1), satisfies these two conditions:
Statute Book 2039, pp. 58, 14 Keslev 5766, 15.12.2005
(1) Has a familial or emotional connection to the terminally ill
patient and is devoted to him;
(2) He is well acquainted with the terminally ill patient, based on a
continuous and long-lasting relationship during the period preceding his
medical treatment or in the course thereof.
“Guardian” - guardian of the person;
“Competent” - a person to whom all of the following apply:
(1)
He is seventeen years old or
older;
(2)
He is able to express his will;
(3)
He has not been declared legally
incompetent;
(4)
He has not been excluded from the
presumption of competency as stated in section 6;
“Director General” - the Director General of the Ministry of Health;
“Prior medical directives ” - medical directives given by a person in
accordance with the provisions of Chapter 5;
“Informed consent” - within the meaning of Chapter 4 of the Patient’s
Rights Law;
“National Committee” - The committee appointed pursuant to the
provisions of section 50;
“Institutional Committee” - A committee appointed pursuant to the
provisions of section 45;
“Terminally ill patient” - A patient regarding whom it was determined
pursuant to the provisions of section 8(a) that he is a terminally ill patient;
“An end-stage patient” - A patient regarding whom it was determined
pursuant to the provisions 8(b) that he is an end-stage patient;
“Patient’s
Rights Law” - Patient’s Rights Law, 5756-1996.1
“Palliative
care” - Palliative care as stated in Article 5 of Chapter 4;
“Medical
treatment”, “patient”, “medical information”, “medical emergency” and “medical
record” - as defined in the Patient’s Rights Law;
“Cyclical
medical treatment” - any of the following:
(1) Medical treatment administered cyclically and with interruptions,
regarding which it is possible to clearly and practically distinguish between
the end of one cycle of treatment and the beginning of the next cycle;
(2) Treatment that was planned in advance, using appropriate
technological means, for being administered cyclically, even though in its
essence it was administered in a continuous and non-interrupted manner;
“Continuous
medical treatment” - medical treatment which by its essence is administered
continuously and without interruptions, excluding periodic medical treatment as
defined in section 2 of the definition of cyclical medical treatment;
“Power of
attorney" "Representative" - as defined in section 37, with
respect to the representative, including a substitute;
“Database”
- The database established in accordance with Article 5 of Chapter 5;
“Medical
institution” - a hospital within the meaning of section 24 of the Health
Ordinance of 1940,2 a clinic within the meaning of section 34 of the
aforementioned Ordinance, as well as —
1
S.H. 5756, p. 327.
2
O.G. 1949, Supp.1 p 191 (a)
239.
a sick
fund, within the meaning of the National Health Insurance Law, 5754-1994;[3]
"caregiver"
- Physician, nurse, social worker and psychologist;
“Significant suffering” -
(1)
As defined by a person who has
given advance medical directives, in those directives, or by a person who has
granted power of attorney, in that power of attorney;
(2)
In the absence of a definition as
stated in paragraph (1), pain or suffering that a reasonable person would be
prepared to make a substantial effort in order to avoid or discontinue, even if
it involved significantly impairing his quality of life or of his life
expectancy.
“Social
worker” - As defined in the Social Workers Law, 5756-1996;[4]
“Psychologist”
- a person registered in the Register of Psychologists pursuant to the
Psychologists Law, 5737-1977;[5]
“Physicians
Ordinance” - Physicians’
Ordinance
[New Version] 5737-1976;[6]
“Minor” - A
person not yet 17 years old;
“Physician”
- A licensed physician within the meaning of the Physicians Ordinance;
“Specialist”
- A physician accredited as specialist according to the Physicians Ordinance;
“Responsible
physician” - One of the following:
(1)
Director of a department or a
unit, in a medical institution, who is responsible for the medical treatment of
the terminally ill
patient, or a specialist who has been appointed by the director of the medical
institution, the director of the department or the director of the unit - with
regard to patients being treated in a medical institution;
(2)
A district physician of a sick
fund, or a physician appointed by him - with regard to patients cared for in
the community
(3)
A physician as stipulated in
sections (1) or (2) - also in respect of patients not being treated in a
medical institution or by a sick fund.
“Personal
physician" - A physician, who is closely acquainted with the patient, and
his wishes and positions regarding his medical treatment, whether a family
physician of the patient or a physician who coordinates the treatment of the
patient in the community or in a medical institution;
“The Minister” - The Minister of
Health.
Chapter 3: The Will to Live and Competence - Presumptions
A
person shall be presumed to wish to continue living, unless proven otherwise;
if not proven otherwise beyond any reasonable doubt - the tendency should be to
decide in favor of the wish to continue living.
A terminally
ill patient shall not be excluded from the presumption that he wishes to
continue living, and medical treatment shall not be withheld from him under the
provisions of this Law, except in accordance with the conditions enumerated in
this section, as the case may be,
(a)
Where the terminally ill patient
is competent - based on his explicitly expressed wish;
(b)
Where the terminally ill patient
is incompetent and is seventeen years old, based on one of the following:
(1)
Advance medical directives that he
gave and which that satisfy the provisions of sections 33 and 34(a);
(2)
A decision of a representative in
accordance with a power of attorney that satisfies the provisions of sections
38 and 39(a);
(3)
A decision of an institutional
committee or the National Committee rendered in accordance with the provisions
of Chapter F.
(c)
In the absence of directives or
decisions as specified in subsection (b) - based on the decision of a
responsible physician, provided that such decision is adopted having
consideration for -
(1)
An explicit declaration of a close
person to the effect that the terminally ill patient does not wish to continue
living;
(2)
In the absence of such a declaration
- having consideration for the position of the terminally ill patient’s
guardian, who is a close person, to the extent that such exists, to the effect
that the terminally ill patient's wish is that his life not be prolonged.
6.
A person who is seventeen years or older and has not been declared legally
incompetent is presumed to be cognitively, mentally, and emotionally competent
to make decisions concerning his medical treatment based on understanding and
discretion, and free will.
7. A terminally ill patient may not be excluded from the presumption
of competence as defined in section 6 for purposes of this Law,
-
of other than
by a thorough, reasoned, and
competence documented medical decision
rendered by the
responsible physician
after consulting with the caregivers of the terminally ill patient and with
relevant physicians or experts, as the case may be, and if possible with his
personal physician.
Chapter 4: The Treatment of
the Terminally Ill Patient
Article A:
General
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Determining 8.
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(a)
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A responsible
physician is authorized to
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a patient’s
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determine that
a patient is a terminally ill
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medical
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patient, if
satisfied that the patient is
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condition
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suffering from an incurable
medical problem and that his life expectancy, even if receiving medical
treatment, does not
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exceed six
months.
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(b)
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A responsible physician is
authorized to determine that a terminally ill patient is an end-stage
patient, if satisfied that he is in a medical condition in which a number of
vital systems in his body have failed and his life expectancy, even if
receiving medical treatment, does not exceed two
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weeks.
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(c)
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A determination of a responsible
physician in accordance with this section will be made following a
consultation with the experts treating the patient and if
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possible also
with his personal physician.
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Determining 9.
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Where a
responsible physician has determined
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the wish of
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that a patient
is a terminally ill patient
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the patient
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10.
(1)
The responsible physician or a person authorized by him for this purpose, will
make a reasonable effort to obtain all the pertinent data and the documentation
for the determination of the patient's wish, pursuant to section 5(b) and (c)
and all in accordance with the rules established for that purpose in the
regulations;
(2) The responsible physician or a person authorized
by him for this purpose, will check in the database whether according to the
records therein, the patient has given advance medical directives, or appointed
a representative; where a responsible physician, or a person authorized by him
for this matter, has determined, based on the clarification by way of the
database or in any other manner, that the patient has given advance medical
directives, or appointed a representative, the responsible physician, or a
person authorized by him for this matter, will add that information to the medical
record conducted in respect of that patient.
(a)
Where a responsible physician has
determined that a patient is a terminally ill patient, and is incompetent, the
responsible physician or a person authorized by him for that purpose, will
notify the patient’s representative, close person, and his guardian, if such
exist and if they can be located with reasonable effort, that he intends to act
in accordance with the patient’s advance medical directives or in accordance
with the representative’s directives, as the case may be.
(b)
A
responsible physician will disclose medical information regarding an
incompetent terminally ill patient and will enable examination of his medical
record by a person whose opinion is required in order to adopt a decision on
the treatment to be given to him in accordance with this Law.
(c)
The provisions of any law
prohibiting the disclosure of medical information will not pertain to the
disclosure of information according to this section
11.
(a) Where a responsible physician
has determined that a patient is a terminally ill patient, he will, as soon as
possible, conduct a detailed consultation with the other caregivers who are
caring for the patient, regarding the patient's medical condition and the
medical treatment that should be given to him, and will decide on the matter,
all in accordance with the provisions of this Law.
(b) Where a responsible physician has determined the
type of medical treatment to be provided to the terminally ill patient, he will
record the consultation process, the decision adopted and its reasons in the
medical record; the provisions of this section are in addition to the
documentation provisions of section 17 of the Patient’s Rights Law.
12.
The responsible physician must
periodically evaluate the competence, the medical condition, and the wish of
the terminally ill patient; where a change has occurred in any of the above, he
must adopt a new decision regarding the type of his medical treatment.
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Article B: A Terminally Ill Patient Requesting
Extraordinary
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Life-Prolonging Treatment
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The
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13.
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Where a
terminally ill patient who wishes to
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terminally ill
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prolong his
life and requests medical
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patient’s right
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treatment that
the responsible physician
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to receive
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considers to be
unjustified under the
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extraordinary
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circumstances,
his wish should be respected
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life-
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and the
requested treatment should be
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prolonging
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provided in
accordance with any other law
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medical
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and in
accordance with the conditions and the
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treatment
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arrangements prevailing from time
to time in the Israeli medical system; the provisions of this section will
not apply to medical treatment that in the opinion of the responsible
physician is not expected to prolong the life of the patient, or liable to
significantly harm the patient or someone else.
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Determining
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14.
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The terminally
ill patient's wish regarding the
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the wish to
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receiving of
medical treatment as stated in
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receive
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section 13,
will be determined according to
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extraordinary
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the following
specifications, as the case may
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life-
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be:
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prolonging
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(a) When a
terminally ill patient is
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treatment
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competent - according to his expressed explicit wish;
(b) When a terminally ill patient is incompetent
and is 17 years old, according to one of the following:
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(1)
According to advance medical
directives given by him, that satisfy the provisions of sections 33 and 34(a);
(2)
According to a decision of his
representative based on a power of attorney that satisfies the provisions of
sections 38 and 39(a);
(3)
According to a decision rendered
by an institutional committee or the National Committee that satisfies the
provisions of Article F.
(c)
In the absence of directives or
decisions as specified in subsection (b), according to -
(1)
An explicit statement of a close
person regarding the wish of the terminally ill patient;
(2)
And in the absence of such a
statement, the wish of the terminally ill patient will be ascertained in
accordance with the position of his guardian who is a close person, if such
exists.
(d)
The provisions of section 9(1)
will also pertain with regard to this section mutatis mutandis.
Article C: A Terminally Ill Patient Who Does Not Wish To
Have
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His Life Prolonged
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Withholding Medical Treatment from a
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15. (a)
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When
a competent terminally ill patient does not want his life prolonged his wish
should be respected and his medical treatment withheld
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competent terminally ill patient
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(b)
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The caregivers
of the terminally ill patient as stated in subsection (a) will make a reasonable
effort to persuade him to receive oxygen, nutrition and hydration, even by
artificial means, and to receive routine treatments required
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for
the treatment of simultaneous or background illnesses as well as palliative
care.
16.
(a) Where an incompetent
terminally ill patient is suffering significantly, and in respect of whom it
has been determined pursuant to the provisions of section 5(b) that he does not
want his life prolonged, medical treatment relating to his incurable conditions
should be withheld from him, including tests, operations, resuscitation,
ventilation, chemotherapy, radiation or dialysis, all in accordance with his
wish as ascertained pursuant to section 5(b).
(b) (1) In this subsection, ancillary treatment” -
medical treatment of the terminally ill patient, that is totally unrelated to
his incurable condition, including routine treatments necessary for the treatment
of simultaneous or background illnesses and palliative care, as well as
nutrition and hydration even by artificial means.
(2)
Ancillary treatment should not be
withheld as stated in subsection (a), even if the terminally ill patient's wish
as ascertained pursuant to section 5(b) is not to receive medical treatment.
17.
Notwithstanding the provisions of
section 16(b), where an incompetent end-stage patient is suffering
significantly, and in respect of whom it was determined pursuant to section 5
(b) that he does not want his life prolonged, all medical treatment should be
withheld from him, including ancillary treatment as stated in section 16(b)(1),
all in accordance with his wish as ascertained pursuant to section 5(b);
Notwithstanding the abovementioned in this section, hydration should not be
withheld, even by artificial means, unless the responsible physician has
determined that provision of fluids causes suffering or harm to the patient.
A medical
18. (a) If the terminally ill patient is in a state emergency of medical emergency, the provisions of
section
15(3) of the Patient’s Rights Law will apply, the caregiver becomes aware that
it was determined pursuant to section 5, that the terminally ill patient wishes
to have medical treatment withheld in such a case
(b) Notwithstanding
that which is stated in subsection (a), with respect to an endstage patient in
a state of medical emergency, it is permitted to withhold life saving medical
treatment, unless the caregiver becomes aware that it was determined pursuant
to section 14 that the end stage patient wishes to receive medical treatment in
such a situation.
Article D: Prohibited Acts
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Prohibition of
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19.
Nothing in these provisions shall permit an
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active killing
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act, even if constituting medical treatment, is
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intended to cause death, or which will almost
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certainly result in death, irrespective of
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whether or not it was motivated by kindness
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and compassion, and irrespective of whether
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or not it was at the request of the terminally
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ill patient or any other person.
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Prohibition of
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20.
Nothing in the provisions of this Law shall
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assisted
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permit any act, even if constituting medical
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suicide
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treatment, that contributes to assisted suicide,
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irrespective of whether or not it was
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motivated by kindness and compassion, and
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irrespective of whether or not it was at the
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request of the terminally ill patient or any
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other
person.
Nothing in the provisions
of this Law shall permit the withdrawal of the continuous treatment of a
terminally ill patient that is liable to cause his death, irrespective of
whether or not he is competent; however it is permitted to refrain from the
renewal of continuous treatment that was withdrawn
unintentionally or not in contravention of the law, and it is also
permitted to avoid the renewal of cyclic medical treatment, all subject to the
provisions of Article C.
22. Should it become known to a responsible
physician that there is a dispute regarding a decision or a determination
concerning a terminally ill patient, and that a person has applied to an
institutional committee or intends to apply to an institutional committee in
order to resolve the dispute, the responsible physician will act in a way that
enables the continued life of the terminally ill patient, provided that if
possible, this should be done by non-continuous medical treatment.
Article E: Palliative care
Providing
23. (a) The responsible physician will make Palliative care sure that everything possible is done
in
order to alleviate the pain and suffering of a terminally ill patient,
even if this involves a reasonable risk of the patient's death, including by
means of medication, pain killers, or psychological methods, nursing, and
environmental measures, and all in accordance with the appropriate principles
of palliative care and in accordance with the conditions and arrangements
prevailing from time to time in the Israeli health care system,
and in accordance with the wish of the terminally ill patient, pursuant to the
provisions of this Law and pursuant to the provisions of the Patient’s Rights
Law.
(b) The responsible
physician will make sure that everything possible is done in order to alleviate
the burden on the family members of a terminally ill patient and to ensure
their well being during the patient's stay in the medical institution, all in
accordance with the appropriate principles of social work and palliative care
and in accordance with the conditions and arrangements prevailing from time to
time in the Israeli health care system.
Article F: Treatment of the Terminally Ill Minor
24.
A
minor’s parent is authorized to represent him regarding his medical treatment,
whether in the matter of prolonging his life or in the matter of refraining
from prolonging his life; a guardian of a minor, who is a close person, is
permitted to voice his position in this matter and the responsible physician is
permitted to act in accordance therewith; if he has no parents, or the parents’
guardianship has been revoked and no other guardian has been assigned for the
minor, or if his guardian is not a close person, the institutional committee
will make a decision in respect of him.
25.
A minor who is a terminally ill
patient is entitled to participate in the adoption of a decision regarding his
medical treatment, if these two conditions are satisfied:
(1)
The minor is aware of his
condition and requests to participate in the adoption of the decision regarding
him;
(2)
The
responsible physician determines that the minor's cognitive and mental capacity
and maturity enable his participation in adopting the decision regarding him.
26.
A responsible physician will give
the minor information that pertains directly to his health or his medical
treatment, if these two conditions are satisfied:
(1)
The responsible physician is
convinced that giving the information, or a part of it, will not cause physical
or mental harm to the minor, or endanger his life;
(2)
The responsible physician has
determined that the minor’s cognitive and mental capacity and maturity enable
him to appropriately understand the information and its meaning.
27.
Decisions as stated in sections
25(2) and 26 will be adopted after consultation with the minor’s parents, his
guardian if appointed, the minor's caregivers, and the relevant physicians or
experts, as appropriate, and if possible with his personal physician.
28.
(a) In the event of a dispute
between the parents of a minor who is a terminally ill patient, or between them
and the responsible physician, with regards to his medical treatment, an
institutional committee will resolve the matter.
(b) Where there is a dispute between a minor who is a
terminally ill patient and his parents, or between them and the responsible
physician, with regards to his medical treatment, the following provisions
shall reply:
(1) Where the minor expressed his wish for his life
to be prolonged the responsible physician will act in accordance with that
wish, subject to the provisions of this Law
(2) If a minor less than 15 years of age has expressed his wish that
his life not be prolonged, an institutional committee will decide on the
matter.
(c) When an institutional committee discusses the matter of a minor
who is a terminally ill patient, it should hear the minor’s position as well,
if expressed, and the committee should also receive the particulars of the
information that was given to the minor.
(d) The
institutional committee will take the best interests of the minor into account
among its other considerations, and will be entitled to determine that his life
should not be prolonged, if convinced that prolonging his life would not be in
his best interests, subject to the provisions of subsection (b)(1).
Article G: Treatment of the Terminally Ill Protected Person
29 (a) In this Law,
“protected person“ - a
. person regarding whom all of the following apply -
(1)
He cannot, routinely, take care of
his own matters because of a cognitive or a mental handicap;
(2)
The condition as stated in section
(1) existed before it was determined that he is a terminally ill patient;
(3)
There are no valid advance
directives or valid power of attorney relating to him.
(b) If a protected person expressed his wish for his life to be
prolonged the responsible physician will act in accordance with his wish,
subject to the provisions of this Law; if the protected person expressed his
wish for his life not be prolonged, an institutional committee will decide upon
the matter; the provisions of sections 25, 26 and 27 will apply mutatis
mutandis, as the case may be.
(c) If the protected person's wish is unknown, and
the responsible physician and the guardian have agreed to prolong his life -
the responsible physician will act accordingly, subject to the provisions of
this Law; in any other case - the institutional committee will decide in the
matter of the protected person.
(d)
The institutional committee will consider the best interests of the protected
person amongst its other considerations and will be entitled to determine that
his life should not be prolonged, if convinced that prolonging his life would
not be in his best interests, subject to the provisions of subsection (b).
Chapter 5: Advance
Expression of a Wish
Article A: Methods of Expressing Advance Directives
Advanced 30.
A person is entitled to express his wish in Expression of advance, regarding his medical treatment
in
Wish the case of his
becoming an incompetent
terminally ill patient by providing
advance directives, appointing a representative, or a combination of both,
based on the provisions of this chapter and provided that he does so of his own
free and independent will and not under family, social, or any other type of
pressure.
Article B: Advance Medical Directives
A competent person is entitled to give
advance medical directives in which he explains his wish in detail with respect
to his future medical treatment if it is determined that he is an incompetent
terminally ill patient, all in accordance with the provisions of this Law.
(a)
Advance medical directives will be
given after the person giving the directives has received from a physician or a
certified nurse such medical information as is reasonably required for the sake
of providing advance medical directives (in this Law - the information giver).
(b)
Notwithstanding the provisions of
subsection (a), where a determination has been made pursuant to the provisions
of this Law that a person is a terminally ill patient, he will give advance medical
directives after receiving information regarding his medical condition from an
expert physician, including medical information regarding his condition that is
relevant for giving the directives as well as the medical information
reasonably required for giving advance medical directives.
(a)
Advance medical directives will be
given in writing, on an advance medical directives form, the wording of which
appears in the First Supplement, signed by the directives giver in the presence
of two witnesses who have no financial or other interest in respect of the
directives giver, and who are not a representative, although one of the
witnesses can be
the information giver; the witnesses will confirm that the directives giver
signed as stated by signing the form on the same occasion. Advance medical
directives may include the definition of significant suffering as provided by
the directives giver and will also include -
(1)
A declaration that the directives
are given of his own free will, based on his own understanding and discretion;
(2)
A summary of the medical
information that was provided to the directives giver, as stated in section 32;
the summary will be registered by the information giver, who will confirm by
his signature that he gave the information to the directives giver and that he
explained all the medical terms to the directives giver pursuant to the
provisions of section 13(b) of the Patient's Rights Law.
Advance medical directives may
be given in other ways, as determined by the Minister, with the approval of the
Labor, Welfare and Health Parliamentary Committee, and they may be determined
as stated in general or for specific types of cases that he determines.
Advance medical directives
shall remain valid for five years after the signing date of the advance medical
directives form unless a shorter period was stipulated, and their validity may
be extended for additional periods, each one of which shall not exceed five
years; the extension will be effected by means of the extension form in the
Third Supplement.
(b)
Advance medical directives that do
not comply with all the provisions of this section or advance medical
directives that have expired according to subsection (a) are not valid, but the
responsible physician should examine them and may take them into consideration
with regards to sections 5(c) and 14(c).
Where
it is impossible to clearly ascertain the wish of a terminally ill patient
based on the advance medical directives that he gave, or where the advance
medical directives are inappropriate under the circumstances of the case, or in
the absence of a representative or clear testimony of a close person - the
institutional committee will resolve the matter.
The absence of advance medical directives does not, in and of itself
attest to the wish of the terminally ill patient regarding his medical
treatment or the withholding of treatment from him.
Article C: Power of Attorney
Representative 37. (a) A competent person is entitled to appoint a
representative using the form the wording of which appears in Supplement Two
and in that power of attorney he is entitled to appoint a substitute for the
representative.
(b) The
representative will be authorized to decide in his stead regarding the medical
treatment that he will or will not be provided with if the terminally ill
patient becomes incompetent; should the representative be unable or
unwilling to fulfill
his role at the designated time, the substitute representative will become the
representative.
The power of
attorney will specify the circumstances and the conditions under which the
representative is authorized to make the above decisions.
Should the
representative be appointed with regards to specific medical conditions or
specific medical treatments - the person giving the power of attorney will
receive medical information in accordance with the provisions of section 32,
mutatis mutandis.
A power of
attorney will be given in writing, of free and independent will, based on
understanding and discretion, and will be signed by the person granting the
power of attorney and by two witnesses who have no financial or other interest
in respect of the person granting the power of attorney, and who are not
representatives, but one of them can be the information giver as stated in
section 37(d); the power of attorney may include the definition of significant
suffering as provided by the person granting the power of attorney and should
also include -
1. A statement that the power of attorney is given
out of free will, based on understanding and discretion
2. Where the power of attorney granted as stated in
section 37(d), the provisions of section 33(b)(2) will apply mutatis mutandis.
In the power
of attorney the person
granting
the power of attorney will indicate that the representative will be authorized
to adopt decisions in his place regarding his medical treatment in the event
that he becomes an incompetent terminally ill patient, and he can specify the
circumstances and the conditions under which the representative will be
authorized to make decisions in his stead regarding all or some of his medical
treatments
(c) Appointment of a representative may be effected in other ways, to
be determined by the Minister, with the approval of the Labor, Welfare and
Health Parliamentary Committee, and they may be determined as stated in general
or for specific types of cases that he determines.
(a)
A power of attorney will be valid
for five years, and its validity may be extended for additional periods none of
which shall exceed five years; the extension will become effective by using the
extension form, the wording of which appears in Supplement Three.
(b)
Where the power of attorney does
not specify the period of its validity, it will be valid for five years from
the date on which it was given; where a person has not renewed a power of
attorney that he gave, or the period of its validity is not determined, the
power of attorney will not be considered valid, but the responsible physician
should examine it and he may take it into consideration with regards to
sections 5(c) and 14(c).
Where a
person has a reasonable suspicion that a representative is not acting according
to the wish of the terminally ill patient or out of a conflict of interests, he
may apply to the institutional committee; where the institutional committee is
satisfied that the representative's acts are based on motivations that do not
reflect the wish of the terminally ill patient or out of a conflict of
interest, it is entitled to determine the appropriate medical treatment for the
terminally ill patient or to cancel the power of attorney.
Article D: General Provisions
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Duty to inform
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41.
Where a responsible physician determines
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that a patient is a terminally ill patient, and
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that he is competent, the responsible
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physician will inform him regarding the
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possibility of giving advance medical
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directives or appointing a representative, or
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inform him regarding the possibility of
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updating advance medical directives or the
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power of attorney that he gave; for this
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purpose, an expert physician will provide
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him with the necessary medical information,
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subject to the provisions of section 13(d) of
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the Patient’s Rights Law.
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Possibility of
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42.
(a) A person is entitled to combine giving
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Combination
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advance medical directives pursuant to
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the provisions of Article B with the
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appointment
of a representative
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according
to the provisions of Article
C.
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(b)
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In the advance
medical directives and
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in the power of
attorney a person is
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entitled to
include directives for a case
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in which there
is a contradiction
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between an
advance medical
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instruction and
a provision in the
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power of
attorney.
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(c)
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In the absence of a directive as
stated in subsection (b) the advance directive
|
will prevail; however, if the power of attorney was given at a
significantly later period than the giving of the directive, the matter will be
submitted for the resolution of an institutional committee that will determine
whether the power of attorney prevails over the advance medical directive.
43.
(a) (1) If advance medical directives were given and then given again, the
advance medical directives most recently given will prevail; the same will
apply to the appointment of a representative pursuant to this Law.
(2) Advance medical directives or a power of attorney
may be cancelled by way of a form in the wording appearing in Supplement Four,
in writing, in the presence of two witnesses or in another way as determined by
the Minister pursuant to sections 33(c) or 38(c).
(b) Modification or cancellation in favor of the wish
to continue to live in a medical emergency can be unwritten and one witness
will suffice; provided that the directive regarding the medical treatment in
said medical emergency and the testimony be documented in writing as soon as
possible thereafter; when the medical emergency has passed, the valid advance
medical directives or the power of attorney retain their validity, unless one
of the following is the case:
(1) The directives or the power of attorney were
cancelled pursuant to the provisions of subsection
(a).
(2) The patient was unable, reasonably, to modify or cancel the
directives or the power of attorney.
(c)
Notwithstanding the provisions of subsection (a), where a person is unable to
modify or cancel advance medical directives or power of attorney that he gave
in the manner prescribed in that subsection, whether in favor of the wish to
live or not in favor of the wish to live, by reason of an illness or defect
that renders him incapable of performing the required practical actions, he may
give his directives by way of another person, under the conditions and in the
manner determined by the Minister.
(a)
The Minister will establish a
database in which advance medical directives and powers of attorney will be
registered and will appoint a person to be responsible for the database.
(b)
Any person is entitled to request
the registration in the database of advance medical directives or powers of
attorney that he gave, as well as any cancellation or modification thereof as
stated in section 43, by notifying the person responsible for the database.
(c)
Once every five years at least the
person responsible for the database will send reminders to the person
registered in the database, to his address as appearing in the population
register, or to any other address specified in the registration request, to
renew the advance medical directives or powers of attorney.
Chapter 6: The
National Committee and Institutional Committees
Article A: Institutional Committee
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Appointment 45.
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(a)
The Director General is entitled to
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of
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instruct the director of a medical
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institutional
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institution to appoint an institutional
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committees
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committee; where the Director General
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has given directives as stated, the director
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of the medical institution, in consultation
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with the chairman of the national
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committee
and having received the approval of the Director General, will appoint an
institutional committee.; And these are its members:
(1)
Three physicians, who are not
treating the patient directly, who are experts in one of these disciplines:
internal medicine, geriatrics, cardiology, neurology, oncology, intensive care,
anesthesia, family medicine; if the patient is a newborn, one of the above will
be an expert in neonatology; if the patient is a minor, one of the above will
be an expert in pediatrics and replacing one of the above will be a clinical or
medical psychologist who specializes in children and youth;
(2)
A physician who does not treat the
patient directly, who is an expert in psychiatry
(3)
A registered nurse;
(4)
A social worker or clinical
psychologist;
(5) An academic who is an expert in the discipline of philosophy or
ethics
(6)
A jurist who is qualified to be
appointed as a district court judge chosen from a list prepared by the Minister
of Justice
(7)
A religious authority representing
the religion of the patient, to the extent possible.
(b)
A substitute person who has the
qualifications required under this section shall be appointed for each
committee member.
(c)
An institutional committee will
elect its chairman from among its members.
(d)
An institutional committee will
convene as close as possible to the time of its receiving the application, and
at a time ensuring the relevance of its decision.
(e)
An institutional committee is
entitled to authorize a subgroup of its members to discuss urgent cases; the
subgroup must include at least the following members: (1) A physician with the
qualifications specified in subsection (a)(1) or (2)
(2)
One of the following committee
members: a registered nurse, a social worker or a clinical psychologist;
(3)
One of the following committee
members: an academic as specified in subsection (a) (5); a jurist as specified
in subsection (a) (6); or a religious authority as described in subsection
(a)(7).
46.
(a) An application to an institutional committee may be made by one of the
following persons:
(1)
A patient who has not been
determined as being a terminally ill patient pursuant to section 8 or a patient
determined as being a
terminally ill
patient pursuant to the provisions of the aforementioned section (in this
chapter - the patient), or a person on behalf of such a patient;
(2) The patient's representative;
(3)
A close person or a guardian of an
incompetent patient;
(4)
A caregiver who is a member of the
medical staff in the medical institution in which the patient is being treated;
(5)
The patient's personal physician;
(6)
A social worker.
Where an application has been
made to the institutional committee by a person who is not the patient or on
his behalf, regarding the matters enumerated in section 47, the committee will
give notice thereof to the patient or person on his behalf; if the patient is
incompetent, the committee will also notify his representative and his guardian
should there be such, as well notifying a close person, as the case may be.
An institutional committee is
authorized to decide in cases in which there is dispute between the relevant
persons or where a doubt arises regarding the nature of the treatment to be
administered to the patient, and inter alia in the following cases:
(1)
An objection to the decision of a
responsible physician regarding the presumption of the wish to continue living
pursuant to section 4 or the presumption of competence pursuant to section 6
(2)
A dispute between the parents of a
minor, between themselves, or between themselves and the responsible physician,
as well as a dispute between a minor who is a terminally ill patient and his
parents or between himself and his caregivers, as stated in section 28;
(3)
A dispute between a guardian and a
minor patient, his parents, or the responsible physician, regarding section 24;
(4)
Ascertaining the wish of a
terminally ill patient based on advance medical directives that he gave as
stated in section 35
(5)
An objection to the decision of a
representative as stated in section 40
(6)
Establishing priorities between
advance medical directives and a power of attorney as described in section
42(c).
(7)
Determination of a responsible
physician in the matter of whether a patient is a terminally ill patient or an
end-stage patient as stated in section 8
(8)
Determination of a responsible
physician to the effect that a person is a close person to the terminally ill
patient;
(b)
When deciding in a dispute as
stated in section (a) an institutional committee shall ascertain the wish of a
patient regarding his medical treatment and give directives regarding the
fulfillment of his wish based on the facts presented to it and subject to the
provisions of this Law; in the absence of facts regarding the wish of the
patient, in a discussion based on section (a)(1-6), the committee shall decide
in accordance with the presumed wish of the patient, based on his world view
and his way of life, and when necessary based on a consultation with a close
person to the terminally ill patient and with people who represent a world view
similar to that of the patient; in the matter of a minor or a protected person,
the committee shall also decide based on section 28(d) or 29(d), as the case
may be.
(c)
The persons mentioned in section
46(a), as well as any person with an interest in the patient, are entitled to
present their claims before the institutional committee.
(d)
The decision of an institutional
committee, other than in the framework of a discussion held by a subgroup as
stated in section 45(e), will only be valid if at least five members
participated in the discussion and in the adoption of the decision, among them
the jurist, one physician and two additional members who are not physicians;
the decisions of the committee will be based on majority opinion; if the
opinions are balanced, the chairman's opinion will be the deciding opinion.
(e)
An institutional committee is
entitled to decide a case, to submit a case for the decision of the National
Committee or to bring the parties involved to an agreement; if the parties
agree - the committee will not decide in the matter.
(f)
An institutional committee in a
medical institution will discuss the matter of a patient being treated in the
medical institution to which it is assigned, and the
matter
of a patient who is not treated in that medical institution if the responsible
physician for that patient is employed by the medical institution; an
institutional committee of a sick fund will discuss the matter of a patient who
is treated by a responsible physician who is not a physician as specified in
paragraph (1) of the definition of a responsible physician, who is a district
physician or was appointed by him, and the committee will be the institutional
committee of the sick fund in which the patient is registered; an institutional
committee will also discuss the case of a patient regarding whom the Director
General instructed it to discuss and decide concerning him.
Where an application
pursuant to section 46 was forwarded to the committee for a second time
regarding a matter pertaining to a terminally ill patient, such matter already
having been discussed and decided by the committee, and where there has been no
change in the circumstances of the case, the chairman is entitled to determine
that the application will not be forwarded to the committee for renewed
discussion.
The committee will not discuss an application in respect of which an
appeal has been filed pursuant to section 51(a)(4), or a petition filed to the
High Court of Justice.
Article B: The National Committee
(a)
The
Director General will appoint the National Committee and these will be its
members:
(1) Four medical experts, at the level of unit director, department
director or hospital director
(2)
Four senior level registered
nurses, at a senior level;
(3)
Four members who are social
workers in a medical institution, at a senior management level, or clinical
psychologists in a medical institution, at a senior management level;
(4)
Four academics who are experts in
the discipline of philosophy or ethics, at a senior academic level
(5)
Four jurists who are qualified to
be appointed as district court judges or that are at a senior academic level
(6)
Four religious authorities.
(b)
The appointed members should be
experienced in the areas discussed by this Law; a Jewish religious authority
will be appointed after consultation with Israel’s Chief Rabbis and the
non-Jewish religious authority will be appointed after consultation with the
president of the appeal court of that religious community in Israel; the jurist
will be appointed after consultation with the Attorney General.
(c)
The Director General will appoint
the chairman of the committee and his substitute from amongst its members.
(d)
The chairman of the committee will
appoint the panels of the committee from amongst its members; six members will
be appointed to each panel, each from a different discipline as specified in paragraphs
(1) to (6) of subsection (a), and he will also appoint a substitute for each
one of them; the committee’s chairman will appoint a chairman and his
substitute for each panel.
(e)
A member of the national committee
will be appointed for a period of five years,
and his appointment may
be renewed for additional periods.
The national committee is
authorized to discuss and decide the following:
(1)
Disputes between the members of
the institutional committee, based on a request of at least one of them;
(2)
Exceptional cases which are of
fundamental importance, submitted by an institutional committee for its
resolution;
(3)
Cases that an institutional
committee submitted to the national committee without deciding upon;
(4)
An appeal regarding the decision
of an institutional committee, submitted by a person entitled to apply to an
institutional committee.
When deciding on a dispute as
stated in subsection (a) the National Committee will ascertain the patient's
wish regarding his medical treatment and give directives regarding the
fulfillment of his wish based on the facts presented to it and subject to the
provisions of this Law; in the absence of factual data regarding the patient's
wish, the Committee shall decide in accordance with the presumed wish of the
patient, based on his world view and his way of life, and when necessary based
on a consultation with a close person to the terminally ill patient and with
people who represent a world view similar to that of the patient; in the matter
of a minor or a protected person, the Committee shall also decide based on
section 28(d) or 29(d), as the case may be.
52.
(a)
The persons enumerated in section 46(a) as well as any person who has an
interest in the patient are entitled to present their claims before the
National Committee.
(b)
The decisions of the National
Committee will be based on majority opinion; if the opinions are balanced, the
chairman's opinion will be the deciding opinion.
(c)
The decision of an institutional
committee will only be valid if at least one representative from each
discipline specified in subsections (1) to (6) of section 50(a) participated in
the discussion.
(d)
The National Committee will decide
an appeal or an application that has been brought before it.
53. If the Attorney General deems that a matter discussed by an
institutional committee or by the National Committee raises a question requiring
the presentation of his position, he may, at his own discretion, turn to the
committee and appear before it in order to present his position in person or by
a person on his behalf.
Chapter 7: Miscellaneous
|
Exemption
|
54.
|
A person will
not be liable under any law for
|
|
from liability
|
|
actions performed in accordance
with this Law unless he acted negligently.
|
|
The right to
|
55.
|
A terminally
ill patient is entitled, to the extent
|
|
additional
|
|
possible, to
have his wish respected with
|
|
actions
|
|
regards to additional actions that
in the opinion of the patient or his family are required, based on his own
initiative and at his own expense; however, a director of a department is
entitled to refuse allow the performance of such actions within the precincts
of the medical institution if in his opinion such actions are liable to
endanger the
|
patient or
disturb other patients or the treating staff.
Nothing
in the provisions of this Law shall obligate a caregiver to administer a
particular medical treatment to the terminally ill patient, or to withhold a
particular medical treatment where it conflicts with his values, conscience or
medical discretion; a caregiver who refuses or withholds as stated will
transfer the treatment to another caregiver, based on an arrangement determined
in advance with the director of the medical institution.
Notwithstanding
the provisions of the Competence and Guardianship Law, 57221962,[7] the Youth
(Care and Supervision) Law, 5720-1960,[8]
the Persons Suffering from Mental Disorders (Treatment) Law, 5751-1991;[9] the
Welfare (Treatment of Retarded Persons) Law, 5729-1969,[10]
and the Safety of Protected Persons Law, 5725-1966,[11]
and subject to the provisions of sections 5(c) and 14(c), the provisions of
section 10(a), the provisions of sections 6 and 7 of Chapter 4 and the
provisions of Chapter 6, a guardian appointed for a person will not be
authorized to represent that person in matters to which this Law applies.
58.
A person
will not disclose identifying information regarding a patient in the course of
fulfilling his role or in the course of his work in accordance with this Law,
and no use shall be made of such information other than for the purpose of
executing the provisions of this
Law, the
provisions of any other law, or pursuant to a court order; the provisions of
this Law do not derogate from the provisions of the Patients Rights Law,
subject to the provisions of section 10(c).
59.
This
Law shall also apply to the state.
60.
(a) The Minister, with the
approval of the Work, Welfare and Health Parliamentary Committee, will
determine -
(1)
Provisions regarding the
definition of a close person
(2)
Provisions regarding the giving,
collection and documentation of statements, and regarding the collection of
documents and data, for the purpose of ascertaining the wish of the patient
pursuant to sections 5, 14, and 35, including evidentiary requirements regarding
testimonies, documents and data as stated;
(3)
The methods of appointment and
working arrangements of the
National committee
and the
institutional
committees;
(4)
The details to be documented in a
medical record according to sections 7 and 11(b)
(5)
Provisions regarding modification
and cancellation of advance medical directives or power of attorney, by a
person who by reason of an illness or defect is incapable of performing the
required practical actions as stated in section 43(c);
(6)
Reporting duties regarding the
execution of the provisions of this Law to a person authorized by the Minister,
for the purposes of supervision and research, and provisions regarding
publication of such information, provided that no identifying details are
published regarding the person being reported on;
(7)
Provisions regarding the duty to
maintain in a medical institution and in any other location determined by the
Minister as stated, technological means within their meaning in paragraph (2)
of the definition of “Cyclical medical treatment”; These provisions can be
implemented gradually with regards to different categories of medical
institutions and in a place as a determined, and for a duration as determined,
according to an order given by the Minister;
(8)
Provisions regarding the
management of the database, including conditions regarding disclosure and
receipt of information, as well as the methods of appointment of the
responsible person and the scope of his authority.
(b)
The Minister will establish
provisions as stated in subsection (7) (a), regarding any technological method,
until the end of one year after the date on which the use of a technological
method was approved by the Director General.
(c)
The Minister, with the approval of
the Labor, Welfare and Health Parliamentary Committee, is entitled to prescribe
other methods for the giving of advance medical directives, as a general rule
or for specific types of cases that he has determined as stated in section
33(c) and
for the granting of a power of attorney, as a general rule or for specific
types of cases that he has determined as stated in
section 38(c);
(d) The first regulations as
stated in subsection (a) will be established until the end of one year after
the publication date of this Law.
|
Implementation
|
61.
|
The
Minister is charged with implementing the provisions of this Law and is
entitled to
|
|
Changing
|
62.
|
establish
regulations for its implementation. The Minister, with the approval of the
|
|
Supplement
|
|
Labor,
Welfare and Health Parliamentary Committee, is entitled to amend the
Supplements and to determine other types
|
|
|
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of
forms as stated.
|
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Application
|
63.
|
This
Law shall come into force one year
|
|
|
|
after
its publication date.
|
Source: ASSIA - Jewish Medical Ethics,
Vol. VI, No. 2,
October 2008, pp. 13-29