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Exploring the nexus of civil and Jewish law
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Exploring the nexus of civil and Jewish law

Experts examine ethics of the right to decide

Rabbi Shalom Lubin, left, leader of Chabad of SE Morris County, throws ethical questions at, from left, Rabbi Michael Broyde, Dr. Kenneth Prager, and Sharona Hoffman.
Rabbi Shalom Lubin, left, leader of Chabad of SE Morris County, throws ethical questions at, from left, Rabbi Michael Broyde, Dr. Kenneth Prager, and Sharona Hoffman.

Barry Ostrowsky, the attorney who is head of New Jersey’s largest health care system, set the tone for the evening when he told a banquet hall full of attorneys that doctors have “a level of inbred arrogance” about how much a consumer can understand and about patients’ ability to make the right decision when given difficult news. given the truth the patient couldn't possible make the right decision…and quite often are in disagreement with one another.

Ostrowsky, president and CEO of RWJ Barnabas Health, was keynote speaker at “Law, Medicine, and the Right to Decide,” the 10th annual Jewish Law Symposium sponsored by Chabad of SE Morris County.

Held Sept. 26 at the Birchwood Manor in Whippany, the program presented a broad discussion of the intersection of law and medicine. Panelists — who included a bioethicist, an attorney who is an expert on health law, and a rabbi who doubles as a law professor — viewed a wide range of issues from their individual vantage points. The panel was moderated by the Chabad’s director, Rabbi Shalom Lubin.

Starting the discussion by linking the notions of doctor-patient confidentiality and attorney-client privilege, Lubin said privacy was sacrosanct in people’s lives. But, he asked, how would each of his panelists cope with a physician who refused to tell adult children the medical condition of an aging parent in failing health?

According to Sharona Hoffman, a professor of law and bioethics at Case Western Reserve University School of Law in Cleveland, “generally it’s up to the doctor to determine whether a patient is competent” to make his or her own medical decisions. If the doctor believes the patient is competent, “he absolutely has to respect the patient’s wishes not to disclose the medical condition.”

Dr. Kenneth Prager, chair of the medical ethics committee at Columbia University, said he would “want to explore with my patient, ‘Why don’t you want your kids to know about this?’ and see if there is a semblance of rationality? If it were appropriate, I might point out how concealing the information might be harmful to this patient…. It’s not one size fits all.”

In some cases, the doctor might be able to make the determination based on how such information could affect the family.

“The Jewish tradition does recognize the greater good associated with the word of the authorities, and sometimes the authorities can be the family,” said Rabbi Michael Broyde, a professor of law and senior fellow at the Center for the Study of Law and Religion at Emory University in Atlanta.

Asked whether a physician or attorney should be required to inform a spouse that he or she has a communicable disease, Hoffman said, “Yes. You may break the confidentiality mandate if you find out your client is about to commit a crime that will hurt another,” noting that many states make it illegal to maintain confidentiality if a client has a sexually transmitted disease that may infect someone else. Under those circumstances, Hoffman said, “the attorney has to inform.”

Said Broyde, “The Jewish tradition mandates that everything a person can do to prevent the transmission of a serious disease must be done, and you might even breach your legal contract in that situation if you are prepared to suffer the penalties.”

One method to address the ethical concerns, he suggested, might be for an attorney who represents both the husband and wife to withdraw from representing one spouse. The lawyer could then “turn to the wife and say, ‘I can’t tell you why, but I represent someone who is intimate with you, and this has created a conflict.’”

What of a request of two deaf parents to operate on a fetus to ensure that the child be born without hearing “because they were afraid of raising a child who could hear?” Lubin asked. Broyde said Jewish tradition gives parents wide latitude in making reversible choices for their children. But when it comes to irrevocable choices, “there are limits in the right to decide that parents might have.”

Responding to the rabbi, Prager said, “It can go either way. There are some who feel parents have complete autonomy in this area and that doctors must carry out the wishes of the parents…. There are those who side very strongly with the absolute right of parents’ autonomy and those who say, ‘Never. No.’”

Hoffman said she is familiar with the argument that some parents “want a deaf child because they feel the deaf community is a wonderful community that is enriching to its members, and they want their child to be part of it.” Such a case, she added, “is not so black and white.”

The evening concluded on an appropriately heavy note with a dialogue on the ethics of terminating life support. Prager told the story of a former patient who knew she was beginning to suffer from Alzheimer’s disease and asked him to switch off her pacemaker. He said that while he would not perform the procedure, “there are doctors who would be willing to do that.”

Reflecting on religious considerations, Broyde said, “Although ferocious pain is grounds for ending a person’s life, the pain your family feels watching your dementia is not the same pain as patients themselves feel…. The Jewish tradition does not consider the pain felt by others as grounds for a person to stop treatment.”

Were such a matter brought to court, attorney Hoffman said, “Judges don’t like to have death on their conscience….” But, she added, she thinks the woman with Alzheimer’s “has a legal right to make that demand.”

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