The policy of non-decision: the case of the dying patient law and the vegetative state patients in Israel

Abstract

The issue of dealing with the end of life, in the context of death with dignity, has gained wide public significance in recent decades. Enacted in Israel in 2005, the dying patient law does not apply to vegetative state patients, leaving them with no decision regarding their fate. This article discusses the policy of non-decision using as a case study the treatment and the option of abstaining from treatment of patients who have been classified as ‘vegetative state’ (VS). This analysis was conducted while focusing on the various explanations for adopting a policy of non-decision, and suggests that it is the gap between the national level of policymaking, where a policy of non-decision is adopted, and the local level of policymaking, where concrete decisions are required, that harms those affected both directly and indirectly by the decisions made. With the aim of informing policymakers about their choice, the article will explain how a policy of non-decision leads to local medical positions that create a street-level policy, ignoring the shared medical needs of the VS patients as a group. The ramifications of this choice lead to a failure to exhaust all treatment options, or alternately, the impossibility of avoiding treatment of these patients.

Keywords:

• Non-decision
• dying patient law
• vegetative state patients

Notes

1. Nachmias and Meidani, Public Policy, 15–31.

2. Easton, A System Analysis, 23–65.

3. Such as legislation, governmental decision, and the like.

4. Anderson, Public Policy Making, 13–18.

5. Dye, Understanding Public, 13–34.

6. Ibid., 258–9.

7. Akindele and Olapade, Theoretical View, 173–80.

8. Bachrach and Morton, Decisions and Nondecisions, 632–42.

9. Sharkansky and Friedberg, Toward a Typology, 145–58.

10. Menachem, Water Policy, 1–99.

11. Lijphart, Politics of Accommodation, 293.

12. Starling, Strategies for Policy Making, 203.

13. Heclo, Policy Analysis, 83–108.

14. Englard, God, State, Nature, Man; Hart, Essays in Jurisprudence and Philosophy.

15. Dworkin, Taking Rights, 293–5.

16. For example, agreeing on the scope of the problem.

17. Chazan, Your Destructors, 78–90.

18. Segev, Constitution-On, 125.

19. Byte-Marom, Research Methods, 183–201.

20. Cassin, Data Analysis, 77–90.

21. Levi, Management and Leadership-Change, 8–22.

22. Jennett, The Vegetative State, 57–72.

23. When the patient’s eyes are open.

24. Andrews, Recovery of Patients, 1597‒9; Andrews, International Working, 797–806; Childs and Mercer, Brief Report, 24–5.

25. Jennett and Plum, Persistent Vegetative, 734–7.

26. Naccache, Is She Conscious?, 1395–6.

27. Miller, Neuroscience, 1376‒9.

28. Authors’ interview.

29. Authors’ interview.

30. See, for example, Andrews, Recovery of Patients, 1597‒9; Andrews, International Working, 797–806; Childs and Mercer, Late Improvement, 24–2; Fins, Constructing an Ethical, 323–7; Hirsch, Raising Consciousness, 1102.

31. Connolly, Trapped In; Laureys et al., Cerebral Metabolism, 121–2.

32. Giacino et al., The Minimally, 349–53; Whyte et al., Predictors of Outcome, 453–62; Lammi et al., The Minimally, 86.

33. Steinberg, J Perinat, 11:51.

34. Walshe et al., Persistent Vegetative, 1045‒7.

35. Volicer et al., Persistent Vegetative, 1382‒4.

36. Glover, Nancy Cruzan, 588–93; Jaul et al., Persistent Vegetative, 1–8.

37. Jaul et al., Persistent Vegetative, 6–8.

38. The average overall cost for caring for a VS patient for the duration of their life is assessed in the US at $6 million.

39. Beauchamp et al., Principles of Biomedical, 325–3.

40. For example, in Israel, the cost of inpatient hospital nursing care per day is NIS 300–400 and the daily cost of complex inpatient nursing care stands at NIS 600–800. By comparison, the hospitalization cost for acute patient care is NIS 1500 per day.

41. Section 8 a.

42. The assumption that the VS patient cannot feel suffering despite hunger or thirst was put to the test in the case of Terry Schiavio, US, 2005. In Israel the late Justice Telgam ruled in the case of Gamliel Lubetsky (1999) that the patient could be disconnected from the artificial feeding machine, which the judge saw as futile treatment, but the Supreme Court overturned his ruling.

43. Laureys et al., PET Scanning, 1790–91.

44. Coma Recovery Scale, Glasgow Coma Scale, Disability Rating Scale.

45. Estimating the number of VS patients with a head injury will show different results over the first half year, because those patients who are considered in a vegetative state one month after the injury might, over the coming months, either die or come out of this state (in other words, the number will be 3–4 times more in the month after the injury than six months after the injury). Thus it emerges that both the rate of new cases per year and the rate of new cases at a specific point in time vary over a certain range in the various reports.

46. Our data, corroborated by hospital directors, indicated twice this number of patients.

47. The Ministry of Health referred us to the licensing criteria procedure and to procedures for operation of and referral to a prolonged artificial respiration department. At the same time we know that not all patients in this group are in need of any artificial respiration).

48. Nursing patient – when there is no need for tracheal intubation.