The Dying Patient Act – Contradiction with Penal Law
Conflict with Basic Law: Human Dignity and Liberty
by Haya Rudnitzky –Drori*
The Dying Patient Act 2005, have come into force at 2006. The article attempts to examine the legal status of this act, as it relates to other legal instruments. Whether it contradicts or even voids, on certain cases, the provisions in Penal Law dealing with death offences? Is it in accord with Article 8 of Basic Law; Human Dignity and Liberty?
The adjudication on petitions for permission to terminate the life of terminally ill patients, prior to the Act, is described, as well as the purpose of this Act. The possible collision between this Act and the basic principles of Human Rights is pointed out.
The attitude of Jewish Law is presented as stated in the Supreme Court's leading decision in the Sheffer case (civil appeal 506/88 supreme court of the state of Israel 24/11/93). A review of the legal state in Israel, concerning the termination of life of terminally ill patients, as compared to that of the US and the UK, is presented. The legal state prior to the Act as compared to the present is reviewed.
The possibility of a patient likely to be included in the definitions of the Act, and thus deprived of life-saving medical treatment, resulting in consequent death, is discussed.
The legal solution suggested is to elevate the status of the Ethics Committees, established by the Act, to that of a Court of Law, with jurisdiction limited solely to matters of this Act. The Ethical Committees are chaired by retired district judges, the other members come from medical and/or paramedical professions. Each case of a dying patient is to be discussed individually. The termination of patient's life will not be determined by a general rule, as applied by the attending physician, with no supervision. This may also relieve physicians of the possible feeling of acting both as producing the death sentence of their patient and acting as his/her executioner. Such Courts could balance, and allow the primary right to life prevail over the secondary right to dignity.
*Haya Rudnitzky Drori B.L.L. Sharey Mishpat school of law Israel; B.A Hebrew University of Jerusalem; R.N Hadassa School of Nursing ; M.P.A Master of Public Administration on Health, Clark University, U.S.A.