The freedom to believe & the freedom to act: The role of the State on issues of religious beliefs /Η ελευθερία πίστης & η ελευθερία πράξης:Ο ρόλος της Πολιτείας σε ζητήματα θρησκευτικών πεποιθήσεων

In Re Estate of Brooks

32 Ill. 2d 361 (1965)

205 N.E.2d 435

In re ESTATE OF BERNICE BROOKS, Alleged Incompetent, MARGARET I. ASTE et al., Appellees, v. BERNICE BROOKS et al., Appellants.

No. 38914.

Supreme Court of Illinois.

Opinion filed March 18, 1965.

KARL M. MILGROM, of Chicago, (W. GLEN How, Q.C., of Toronto, Canada, of counsel,) for appellants.

DANIEL P. WARD, State's Attorney, of Chicago, (EDWARD J. HLADIS, FRANCES G. SOWA, and JOSEPH V. RODDY, Assistant State's Attorney, of counsel,) for appellees.

Orders reversed.

*362 Mr. JUSTICE UNDERWOOD delivered the opinion of the court:

This is an appeal from the probate division of the circuit court of Cook County which entered an order appointing a conservator of the person of Mrs. Bernice Brooks, and allowed the conservator's request to be authorized to consent, on behalf of Mrs. Brooks, to transfusions of whole blood to her. The transfusions were made, and appellants, Mrs. Brooks and her husband, now seek to have all orders in the conservatorship proceedings expunged, and the petition therein filed dismissed. Questions under both Federal and State constitutions confer jurisdiction on direct appeal. U.S. Const., 1st, 5th and 14th amendments; Ill. Const., art. VI, sec. 5; Supreme Court Rule 28-1.

On and sometime before May 7, 1964, Bernice Brooks was in the McNeal General Hospital, Chicago, suffering from a peptic ulcer. She was being attended by Dr. Gilbert Demange, and had informed him repeatedly during a two-year period prior thereto that her religious and medical convictions precluded her from receiving blood transfusions. Mrs. Brooks, her husband and two adult children are all members of the religious sect commonly known as Jehovah's Witnesses. Among the religious beliefs adhered to by members of this group is the principle that blood transfusions are a violation of the law of God, and that transgressors will be punished by God. This organization's publication, "Blood, Medicine and the Law of God", which had been filed by Mrs. Brooks with her physician, states the principle: "The matter was not to be taken lightly. Any violation of the law on blood was a serious sin against God, and God himself would call the law violator to account. `As for any man of the house of Israel or some alien resident who is residing as an alien in your midst who eats any sort of blood, I shall certainly set my face against the soul that is eating the blood, and I shall indeed cut him off from among his people'. Leviticus 17:10". Also a part *363 of the foundation for this belief is the admonition found in the book of the Acts of the Apostles, 15:28-29: "For it seemed good to the Holy Ghost, and to us, to lay upon you no greater burden than these necessary things; that ye abstain from meats offered to idols, and from blood, and from things strangled, and from fornication; from which if ye keep yourselves, ye shall do well". Various other Biblical texts are quoted as authority for the belief, including Genesis 9:3-4: "Every moving animal that is alive may serve as food for you. As in the case of green vegetation, I do give it all to you. Only flesh with its soul its blood you must not eat". Premised upon the belief that "The blood is the soul" (Deuteronomy 12:33) and that "We cannot drain from our body part of that blood, which represents our life, and still love God with our whole soul, because we have taken away part of `our soul our blood ' and given it to someone else" (Blood, Medicine and the Law of God, p. 8), members of Jehovah's Witnesses regard themselves commanded by God to neither give nor receive transfusions of blood.

Mrs. Brooks and her husband had signed a document releasing Dr. Demange and the hospital from all civil liability that might result from the failure to administer blood transfusions to Mrs. Brooks. The patient was assured that there would thereafter be no further effort to persuade her to accept blood.

Notwithstanding these assurances, however, Dr. Demange, together with several assistant State's attorneys, and the attorney for the public guardian of Cook County, Illinois, appeared before the probate division of the circuit court with a petition by the public guardian requesting appointment of that officer as conservator of the person of Bernice Brooks and further requesting an order authorizing such conservator to consent to the administration of whole blood to the patient. No notice of this proceeding was given any member of the Brooks family. Thereafter, the conservator *364 of the person was appointed, consented to the administration of a blood transfusion, it was accomplished and apparently successfully so, although appellants now argue that much distress resulted from transfusions due to a "circulatory overload".

We are met at the outset with appellees' contention that since the blood transfusions have been given, the conservator has been discharged, and the estate has been closed, this cause is now moot. As to this question, language in a previous decision of this court (People ex rel. Wallace v. Labrenz, 411 Ill. 618, 622-23) is particularly appropriate:

"Before we reach the merits, we meet the State's contention that the case is now moot and should be dismissed because the blood transfusion has been administered, the guardian discharged and the proceeding dismissed. Because the function of courts is to decide controverted issues in adversary proceedings, moot cases which do not present live issues are not ordinarily entertained. `The general rule is that when a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved or where the substantial questions involved in the trial court no longer exist, it will dismiss the appeal or writ of error'. People v. Redlich, 402 Ill. 270, 279.

"But when the issue presented is of substantial public interest, a well-recognized exception exists to the general rule that a case which has become moot will be dismissed upon appeal. (See cases collected in 132 A.L.R. 1185.) Among the criteria considered in determining the existence of the requisite degree of public interest are the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question.

"Applying these criteria, we find that the present case falls within that highly sensitive area in which governmental action comes into contact with the religious beliefs *365 of individual citizens. * * * In situations like this one, public authorities must act promptly if their action is to be effective, and although the precise limits of authorized conduct cannot be fixed in advance, no greater uncertainty should exist than the nature of the problems makes inevitable. In addition, the very urgency which presses for prompt action by public officials makes it probable that any similar case arising in the future will likewise become moot by ordinary standards before it can be determined by this court. For these reasons the case should not be dismissed as moot."

We accordingly proceed to a consideration of the issues.

It is argued by appellants that the absence of notice in any form to Mrs. Brooks or her husband, who were readily available at the hospital, constituted a denial of due process vitiating the entire proceedings; that insufficient proof was presented to establish the patient's incompetency (the doctor testified Mrs. Brooks was "semi-disoriented" and not "fully capable" but also stated "I think she would consent to surgery. It is the fact this is a transfusion of blood she objects to"); and that acceptance of medical treatment previously refused because of religious and medical reasons (blood transfusions are not entirely free from hazard) cannot be judicially compelled under the circumstances here present.

While, under the particular circumstances here, some merit is to be found in all of these contentions, we believe we should predicate our decision upon the fundamental issue posed by these facts, i.e.: When approaching death has so weakened the mental and physical faculties of a theretofore competent adult without minor children that she may properly be said to be incompetent, may she be judicially compelled to accept treatment of a nature which will probably preserve her life, but which is forbidden by her religious convictions, and which she has previously steadfastly refused to accept, knowing death would result from such refusal? *366 So far as we have been advised or are aware, there is no reported decision in which this question has been squarely presented and decided.

It is established that the commands of the First Amendment to the United States Constitution relating to religious freedom are embraced within the Fourteenth Amendment and by it extended to the States. (Cantwell v. Connecticut, 310 U.S. 296, 303, 84 L. Ed. 1213, 60 S. Ct. 900, 903; School District of Abington Township v. Schempp, 374 U.S. 203, 215, 10 L. Ed. 2d 844, 83 S. Ct. 1560, 1568.) While the early decisions in this area consider as a unit the First Amendment provisions that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof", the later opinions treat the cases as falling within the Establishment Clause or the Free Exercise Clause. It has been held that governmental actions cannot be proscribed under the latter clause unless they are demonstrated to have a coercive effect upon the individual, but the presence of that effect here is self-evident.

The motivating factors underlying the constitutional separation of church and State and the prohibitions against governmental interference in matters of religion emanated from the circumstances prevailing in many European countries during precolonial ages, and from the practices among the colonies themselves prior to federation. The cruel and oppressive measures adopted, and the punishments imposed to compel conformity of all religious beliefs to those held by the most numerous or powerful groups are too well known to require documentation. Even the colonial governments legislated in this area, or attempted to do so, taxing inhabitants against their will for the support of religion or a particular sect, compelling attendance at worship meetings with various penalties including death provided for those who failed or refused to comply, and punishing those nonconformists whose opinions were considered heretical. The controversy culminated in the First Amendment's guarantee *367 to the individual of freedom from governmental domination in his religious beliefs and practices, and the point at which interference therewith may be constitutionally permissible is well illustrated by the proceedings of the Virginia House of Delegates. That body, after a spirited debate, adopted a bill "for establishing religious freedom" drafted by Thomas Jefferson (1 Jeff. Works 45; 2 Howison, Hist. of Va. 298) the preamble of which stated (12 Hen. Stat. 84) "to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty" and "it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order". The line of demarcation between that which may and that which may not be proscribed as set forth in the concluding portion of this quotation has been manifest in the philosophy of this nation and decisions of its courts during the intervening years. Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244; Davis v. Beason, 133 U.S. 333, 33 L. Ed. 637.

Appellees argue that society has an overriding interest in protecting the lives of its citizens which justifies the action here taken. As supporting this conclusion they rely upon the compulsory vaccination cases (e.g. Jacobson v. Massachusetts, 197 U.S. 11, 49 L. Ed. 643, 25 S. Ct. 358); the polygamous marriage proscriptions (Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244, Davis v. Beason, 133 U.S. 333, 33 L. ed. 637); those cases sustaining statutes prohibiting the handling of snakes during religious rituals (Lawson v. Commonwealth, 291 Ky. 437, 164 S.W.2d 972; Harden v. State, 188 Tenn. 17, 216 S.W.2d 708); People ex rel. Wallace v. Labrenz, 411 Ill. 618, wherein we upheld the appointment of a guardian who consented to a blood transfusion administered to the minor child of members of *368 Jehovah's Witnesses; and Application of President and Directors of Georgetown College, Inc. (D.C. cir.) 331 Fed. 2d 1000, cert. denied 84 S. Ct. 1883, involving a blood transfusion to an adult member of the same sect.

These cases are not determinative of the instant issue, and some are, in fact, supportive of a conclusion contrary to that urged by appellees. We believe the compulsory vaccination cases inapposite since society clearly can protect itself from the dangers of loathsome and contagious disease, a question with which we are not concerned; the polygamous marriage bans were upheld because the practice consisted of overt acts determined to be deleterious to public morals and welfare (no overt, immoral activity appears here); the Lawson and Harden "snake handling" prohibitions also involved affirmative action deemed detrimental to the public welfare; and Labrenz involved blood transfusions to a minor child; the Georgetown College case was an altogether unique proceeding in which a single Federal Court of Appeals judge entered an order allowing a blood transfusion to an adult member of Jehovah's Witnesses. A doctor and hospital authorities had appeared originally before a Federal district judge and orally requested entry of an order permitting blood transfusions to be administered to a patient evidently in extremis. The request was denied. Later that same day, an "appeal" was taken to a single Court of Appeals judge, and the same order was requested of him. In reaching his determination, the judge went to the hospital and spoke with the patient and her husband. The husband said that while his wife was obliged to "abstain from blood", if the court ordered a transfusion, the matter would be out of his hands. The patient stated that the transfusion would be against her will, but she also intimated that the court could take the matter from her hands. The judge then entered the order, determining to "act on the side of life".

In subsequently denying a petition for rehearing en *369 banc, the opinions filed by other members of that court indicate their misgivings regarding the substantive and procedural aspects of the action taken. Contrary to appellee's interpretation, we read the opinions as suggesting a majority of the court would have refused the order. However, irrespective of the merits of that case, it is readily distinguishable from the instant one. There, the person alleged to be in extremis was the mother of minor children. The State might well have an overriding interest in the welfare of the mother in that situation, for if she expires, the children might become wards of the State. Such reasoning is inapplicable here since all members of the Brooks family are adults.

Similarly, the holding of the New Jersey Supreme Court (Raleigh Fitkin-Paul Morgan Memorial Hosp. v. Anderson, 42 N. J. 421, 201 A.2d 537 (1964), cert. denied, 377 U. S. 985) authorizing blood transfusions for a nonconsenting Jehovah's Witnesses member who was quick with child is not here persuasive since the court there held it unnecessary to determine whether the mother could be compelled to accept a transfusion to save her own life because it was so inextricably interwoven with that of the child as to render it impracticable to distinguish between them.

We believe Jefferson's fundamental concept that civil officers may intervene only when religious "principles break out into overt acts against peace and good order" has consistently prevailed in varying forms since Reynolds v. United States and Davis v. Beason.

In Cantwell v. Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900, where a statute imposed unconstitutional conditions upon fund solicitation for religious purposes, the court said at page 903 (S.Ct.) in speaking of the First Amendment safeguard of the free exercise of any chosen form of religion: "Thus the Amendment embraces two concepts, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot *370 be. Conduct remains subject to regulation for the protection of society." But the court there found no "clear and present danger" appeared.

In Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438, the judicial difficulties inherent in a delineation of the boundary line between those expressions of religious convictions in the form of public acts which may be suppressed and those which are constitutionally protected were well demonstrated in a 5-4 opinion upholding a statute of Massachusetts against the contention that a child member of Jehovah's Witnesses was constitutionally protected by the First Amendment in selling the organization's magazines on the streets. The court there based its decision upon the injury to society involved in knowingly permitting a child of tender years to violate the child labor laws and the hazards involved in permitting such child upon the public streets. While there stating that "the state's authority over children's activities is broader than over like action of adults", the court's decision was apparently prompted by the majority's belief that State action impinging upon a claimed religious freedom is sustainable when shown to be necessary for or conducive to society's protection against some clear and present danger.

In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178, the court nullified a mandatory school program requiring all students to salute the flag and recite the pledge of allegiance. The basis therefor was a violation of the constitutional guarantees of freedom of speech and freedom of woreship. The language of the majority opinion at page 1187 (S.Ct.) is apt: "We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. *371 That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. [Emphasis added]. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein". Also appropriate is the language of the specially concurring opinion of Justices Black and Douglas at page 1188: "No well ordered society can leave to the individuals an absolute right to make final decisions, unassailable by the State, as to everything they will or will not do. The First Amendment does not go so far. Religious faiths, honestly held, do not free individuals from responsibility to conduct themselves obediently to laws which are either imperatively necessary to protect society as a whole from grave and pressingly imminent dangers or which, without any general prohibition, merely regulate time, place or manner of religious activity". (Emphasis added)

In School District of Abington Township v. Schempp, 374 U.S. 203, 10 L. Ed. 2d 844, 83 S. Ct. 1560, 1572, a school prayer case decided under the Establishment Clause of the First Amendment, the court in commenting on the Free Exercise Clause stated on page 1574 (S.Ct.): "The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality".

In addition to the factors apparent in the decisions quoted from, the concurring opinion of Mr. Justice Brennan in the Schempp case poses another distinction when at page *372 1586 he states: "But we must not confuse the issue of governmental power to regulate or prohibit conduct motivated by religious beliefs with the quite different problem of governmental authority to compel behavior offensive to religious principles."

We have quoted at some length from these decisions in order to demonstrate what we believe to be the controlling elements in controversies akin to that now before us. It seems to be clearly established that the First Amendment of the United States Constitution as extended to the individual States by the Fourteenth Amendment to that constitution, protects the absolute right of every individual to freedom in his religious belief and the exercise thereof, subject only to the qualification that the exercise thereof may properly be limited by governmental action where such exercise endangers, clearly and presently, the public health, welfare or morals. Those cases which have sustained governmental action as against the challenge that it violated the religious guarantees of the First Amendment have found the proscribed practice to be immediately deleterious to some phase of public welfare, health or morality. The decisions which have held the conduct complained of immune from proscription involve no such public injury and no danger thereof.

Applying the constitutional guarantees and the interpretations thereof heretofore enunciated to the facts before us we find a competent adult who has steadfastly maintained her belief that acceptance of a blood transfusion is a violation of the law of God. Knowing full well the hazards involved, she has firmly opposed acceptance of such transfusions, notifying the doctor and hospital of her convictions and desires, and executing documents releasing both the doctor and the hospital from any civil liability which might be thought to result from a failure on the part of either to administer such transfusions. No minor children are involved. *373 No overt or affirmative act of appellants offers any clear and present danger to society we have only a governmental agency compelling conduct offensive to appellant's religious principles. Even though we may consider appellant's beliefs unwise, foolish or ridiculous, in the absence of an overriding danger to society we may not permit interference therewith in the form of a conservatorship established in the waning hours of her life for the sole purpose of compelling her to accept medical treatment forbidden by her religious principles, and previously refused by her with full knowledge of the probable consequences. In the final analysis, what has happened here involves a judicial attempt to decide what course of action is best for a particular individual, notwithstanding that individual's contrary views based upon religious convictions. Such action cannot be constitutionally countenanced.

It is well stated in Barnette v. West Virginia State Board of Education, 47 F. Supp. 251, 253 (aff'd. 319 U. S. 624): "Courts may decide whether the public welfare is jeopardized by acts done or omitted because of religious belief; but they have nothing to do with determining the reasonableness of the belief. That is necessarily a matter of individual conscience. There is hardly a group of religious people to be found in the world who do not hold to beliefs and regard practices as important which seem utterly foolish and lacking in reason to others equally wise and religious; and for the courts to attempt to distinguish between religious beliefs or practices on the ground that they are reasonable or unreasonable would be for them to embark upon a hopeless undertaking and one which would inevitably result in the end of religious liberty. There is not a religious persecution in history that was not justified in the eyes of those engaging in it on the ground that it was reasonable and right and that the persons whose practices were suppressed were guilty of stubborn folly hurtful to the general *374 welfare. * * * The religious freedom guaranteed by the First and Fourteenth Amendments means that he shall have the right to do this, whether his belief is reasonable or not, without interference from anyone, so long as his action or refusal to act is not directly harmful to the society of which he forms a part".

And a portion of Judge Burger's opinion (joined in by Judges Miller and Bastian) in the Georgetown College case (331 F. 2d 1000) at page 1016 is here appropriate: "Mr. Justice Brandeis, whose views have inspired much of the `right to be let alone' philosophy, said in Olmstead v. United States, 277 U.S. 438, 478, 48 S. Ct. 564, 572, 72 L. Ed. 944 (1928), (dissenting opinion): `The makers of our Constitution * * * sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone the most comprehensive of rights and the right most valued by civilized man.' Nothing in this utterance suggests that Justice Brandeis thought an individual possessed these rights only as to sensible beliefs, valid thoughts, reasonable emotions, or well-founded sensations. I suggest he intended to include a great many foolish, unreasonable and even absurd ideas which do not conform, such as refusing medical treatment even at great risk".

While the action of the circuit court herein was unquestionably well-meaning, and justified in the absence of decisions to the contrary, we have no recourse but to hold that it has interfered with basic constitutional rights.

Accordingly, the orders of the probate division of the circuit court of Cook County are reversed.

Orders reversed.

The bloody transfusions in Greece /Οι αιματοβαμένες μεταγγίσεις στην Ελλάδα

* Αντιγόνη Μιχοπούλου,
«Χρυσό το αίμα στην Ελλάδα»,
HOTDOC
Τεύχος 110 (A' Οκτώβριος 2016),σσ. 28-33.

*

*

Abortions at Greece: Whose blood is shed? / Οι εκτρώσεις στην Ελλάδα: Ποιου το αίμα χύνεται;

*

Το ατομικό δικαίωμα στην επιλογή ιατρικών πράξεων βάσει θρησκευτικής συνείδησης στην Ελλάδα /The civil right to choose medical treatment in harmony with one's religious conscience in Greece

 

* Διοικητικό Εφετείο Θεσσαλονίκης, Τμήμα Β',

Αρ. απόφ. 770/2011,

15 Απριλίου 2011,

σσ. 3, 4.

γονιδιακή χιμαιροποίηση

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List of medical treatments accepted and unaccepted by Jehovah's Witness /Λίστα μορφών ιατρικής θεραπείας αποδεκτών και μη αποδεκτών από τους Μάρτυρες του Ιεχωβά

 

* Salvatore Guarino, Filippo Di Matteo, Salvatore Sorrenti, Roberto Greco, Matteo Nardi, Pasqualino Favoriti, Enrico De Antoni, Angelo Filippini, Antonio Catania,
“Bloodless surgery in geriatric surgery,”
[«Αναίμακτη χειρουργική στη γηριατρική χειρουργική»]
International Journal of Surgery,
Available online 23 August 2014,
ISSN 1743-9191, http://dx.doi.org/10.1016/j.ijsu.2014.08.374. (http://www.sciencedirect.com/science/article/pii/S1743919114008589).

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Through whose blood? / Μέσω του αίματος τίνος;

«διὰ τοῦ αἳματος τοῦ ἰδίου»

— Πράξεις / Acts 20:28

As now widely thought, however, this expression should likely be understood as “through the blood of his own (son).” See, e.g., Metzger, Textual Commentary, 426–27. Cf. also B. D. Ehrman, The Orthodox Corruption of Scripture (New York, Oxford: Oxford University Press, 1993), 87–88, 264, who reads the variants in the context of “Patripassianist” controversies.

Όπως πιστεύεται ευρέως, όμως, αυτή η έκφραση θα πρέπει πιθανότατα να κατανοηθεί ως «μέσω του αίματος του ίδιου (του γιου) του». Βλέπε, λ.χ., Metzger, Textual Commentary, σσ. 426–27. Πρβλ. επίσης B. D. Ehrman, The Orthodox Corruption of Scripture (New York, Oxford: Oxford University Press, 1993), σσ. 87–88, 264, ο οποίος αντιλαμβάνεται τις κειμενικές παραλλαγές στο πλαίσιο των “πατροπασχιτικών” ερίδων.

* Larry W. Hurtado,
“God or Jesus? Textual Ambiguity and Textual Variants
in Acts of the Apostles”
[Ο Θεός ή ο Ιησούς; Ασάφειες και Κειμενικές Παραλλαγές
στις Πράξεις των Αποστόλων],
in: Texts and Traditions: Essays in Honour of J. Keith Elliott,
eds. Peter Doble & Jeffrey Kloha,
Leiden/Boston: Brill, 2014,
pp./σσ. 239-54 (p./σ. 15).
[prepubl. English/Αγγλικά, PDF]

Is it suicide the refusion of blood transfusion for religious reasons? /Είναι αυτοκτονία η άρνηση μετάγγισης αίματος για θρησκευτικούς λόγους;

It is true, of course, that common sense usually has it that a suicide requires active performance, meaning that only if someone kills himself should the act be deemed a suicide. But there are several cases where people actually do not kill themselves but still die by suicide. Someone who attacks a policemen with the intent to be shot, or who skies in a dangerous area to be buried under an avalanche, does not kill himself but performs a suicide. On the other hand, not every case of death that is due to the rejection of medical treatment is therefore a case of suicide by omission. There needs to be a desire to die. For instance, if a Jehovah's Witness refuses a required blood transfusion, he does not act on the basis of a desire to die, but out of respect for God's commands. Hence, for a suicide it is not the means of death that are important, but whether there is a desire to die and an alternative option that does not (directly) lead to death.

Είναι αλήθεια, βέβαια, ότι η κοινή γνώμη συνήθως θεωρεί ότι η αυτοκτονία απαιτεί ενεργή διάπραξη, που σημαίνει ότι μόνο αν κάποιος σκοτώσει εαυτόν θα πρέπει η πράξη να λογιστεί ως αυτοκτονία. Αλλά υπάρχουν διάφορες περιπτώσεις στις οποίες οι άνθρωποι δεν σκοτώνουν εαυτούς πραγματικά αλλά και πάλι πεθαίνουν αυτοκτονώντας. Κάποιος που επιτίθεται σε αστυνομικό με την πρόθεση να τον πυροβολήσουν ή κάποιος που κάνει σκι σε επικίνδυνη περιοχή με κίνδυνο να θαφτεί κάτω από μια χιονοστιβάδα, δεν σκοτώνει εαυτόν αλλά διαπράττει αυτοκτονία. Από την άλλη μεριά, δεν είναι κάθε περίπτωση θανάτου εξαιτίας άρνησης ιατρικής περίθαλψης κατά συνέπεια περίπτωση αυτοκτονίας από αμέλεια. Πρέπει να υφίσταται επιθυμία να πεθάνει. Για παράδειγμα, αν ένας Μάρτυρας του Ιεχωβά αρνείται μια απαιτούμενη μετάγγιση αίματος, δεν ενεργεί βάσει επιθυμίας να πεθάνει αλλά από σεβασμό για τις εντολές του Θεού. Συνεπώς, σε μια αυτοκτονία δεν είναι ο τρόπος θανάτου το σημαντικό αλλά το κατά πόσον υπάρχει επιθυμία να πεθάνει και η εναλλακτική επιλογή που δεν οδηγεί (άμεσα) στο θάνατο.

* Thomas Schramme,
"Rational suicide, assisted suicide, and indirect legal paternalism"
[Ορθολογική αυτοκτονία, υποβοηθούμενη αυτοκτονία και έμμεσος νομικός πατερναλισμός],
International Journal of Law and Psychiatry,
Elsevier Ltd.,
Available online 29 June 2013.

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Thomas Bartholin (1616–1680)on blood transfusions & the Apostolic decree about blood / Ο Τόμας Μπάρθολιν (1616–1680)για τις μεταγγίσεις αίματος & το Αποστολικό διάταγμα σχετικά με το αίμα

“Transfusion surgery by novices has exceeded limits in recent years, since it has infused through an opened vein into the heart of a sick man not only invigorating liquids, but warm blood of animals or [blood] from one man into another . . . Indeed the learned man Elsholtz (in chap. 7 of the Clysmatica Nova [New Clyster]) pleads as an excuse that the Apostolic decree must in fact be understood with regard to the eating of blood done through the mouth, not at all with regard to infusion by the veins, but either manner of taking [blood] accords with one and the same purpose, that by this blood a sick body be nourished or restored [to health].”


«Οι εγχειρήσεις μεταγγίσεων που γίνονται από αρχάριους, έχουν ξεπεράσει τα όρια στα πρόσφατα χρόνια, επειδή έχουν αρχίσει να εισάγονται μέσω μιας ανοιχτής φλέβας, μέσα στην καρδιά του αρρώστου όχι μόνο τονωτικά υγρά αλλά και ζεστό αίμα ζώων ή [αίμα] από τον έναν άνθρωπο στις φλέβες του άλλου . . . Είναι αλήθεια ότι, ο πολυμαθής Έλσχολτζ (στο κεφ. 7 του Clysmatica Nova) επικαλείται σαν δικαιολογία, ότι το Αποστολικό διάταγμα θα πρέπει στην πραγματικότητα, να κατανοηθεί σε σχέση με τη βρώση αίματος που γίνεται από το στόμα και καθόλου σε σχέση με την εισαγωγή από τις φλέβες· αλλά είτε με τον έναν, είτε με τον άλλον τρόπο ληφθεί [αίμα], αυτό εναρμονίζεται με τον ένα και τον αυτό σκοπό, δηλαδή ότι με αυτό το αίμα ένα άρρωστο σώμα θα τραφεί ή θα αποκατασταθεί [σε υγεία]». 

Thomas Bartholin,
De sanguine vetito disquisitio medica cum Cl. Salmasii,
iudicis Francofurtum 1673,
p./σ. 11.

[Λατινικά/Latin, PDF]

*

Ο Αρεταίος ο Καππαδόκης (αρχές 2ου αι. Κ.Χ.) περί της πόσης ανθρωπίνου αίματος ως ιατρικού για τη θεραπεία της επιληψίας /Aretaeus of Cappadocia (early 2nd cent. CE)on drinking human blood as a remedy for curing epilepsy

ἐθεασάμην δὲ ἀνθρώπου γε νεοσφαγέος ὑποθέντας φιάλην τῷ τρώματι καὶ ἀρυσαμένους τοῦ αἵματος πίνοντας. ὢ τῆς παρεούσης μεγάλης ἀνάγκης, τλῆναι κακὸν ἀκέσασθαι μιάσματι κακῷ· εἰ δὲ καὶ ὑγιέες ἐκ τούτου ἐγένοντο, ἀτρεκὲς οὐδεὶς ἔχει μοι λέγειν· ἄλλη δέ τις γραφὴ ἔφραζεν, ἧπαρ ἀνθρώπου φαγεῖν. ἀλλὰ τάδε μὲν γεγράφθω τοῖσι μέχρι τῶνδε τλήμοσι.

Αρεταίος ο Καππαδόκης * ,
Χρονίων νούσων θεραπευτικόν 1:4.


I have seen persons holding a cup below the wound of a man recently slaughtered, and drinking a draught of the blood! O the present, the mighty necessity, which compels one to remedy the evil by such a wicked abomination! And whether even they recovered by this means no one could tell me for certain. There is another story of the liver of a man having been eaten. However, I leave these things to be described by those who would bear to try such means.


Aretaeus of Cappadocia,
Treatment of Chronic Diseases 1:4.

(Transl. Fr. Adams [Ελληνικά/Greek-English/Αγγλικά, PDF])

NATA: Perioperative management of Jehovah’s Witness patients in relation to their refusal of allogeneic blood transfusion / Περιεγχειρητική διαχείριση Μαρτύρων του Ιεχωβά ασθενών ως προς την άρνησή τους για μετάγγιση αλλογενούς αίματος

Oliver Habler,

"Focused Update:
Perioperative Management of Jehovah’s Witness Patients
in Relation to Their Refusal of Allogeneic Blood Transfusion"

["Επικεντρωμένη Ενημέρωση:
Περιεγχειρητική Διαχείρηση Μαρτύρων του Ιεχωβά Ασθενών
ως προς την Άρνησή Τους για Μετάγγιση Αλλογενούς Αίματος"],

Network for Advancement of Transfusion Alternatives (NATA),
April 2013.

Η πατερναλιστική παραβίαση των επιλογών βάσει συνείδησης είναι κάτι χειρότερο από δολοφονία /Violating paternalistically the choices made by conscience is worse than killing

Gettysburg Times,
January 11, 1982 / 11 Ιανουαρίου 1982,
p./σ. 2.

 

“[The] violation of [another's] conscience does grave damage to man.
It is the most painful blow inflicted to human dignity.
In a certain sense, it is worse than inflicting physical death, or killing.”

* Pope John Paul II,
“Pope denounces Polish crackdown”,
New York Times, January 11, 1982, p. A9.

 

«Η παραβίαση της συνείδησης [ενός άλλου ανθρώπου]
προκαλεί τεράστια ζημιά στον άνθρωπο.
Είναι το πιο οδυνηρό χτύπημα
που μπορεί να δεχτεί η ανθρώπινη αξιοπρέπεια.
Με μια ορισμένη έννοια,
αυτό είναι χειρότερο από το να σκοτώσουν το σώμα κάποιου,
δηλαδή να τον θανατώσουν».

* Πάπας Ιωάννης Παύλος Β΄,
«Ο πάπας καταγγέλλει τα αυστηρά μέτρα που επιβάλλονται στην Πολωνία»,
New York Times, 11 Ιανουαρίου 1982, σ. A9.

*

Isaac Newton, The Question stated about Abstaining from Blood(c. 1719) /Ισαάκ Νεύτων, Το Ζήτημα που αναφέρεται στην Αποχή από Αίμα (περ. 1719)

The Question stated about abstaining from blood.

The Israelites are recconed to have had two sorts of Proselites, one to the law of Moses, the other only to the precepts of the sons of Noah. The first they circumcised the other not. Yet the Patriarchs were circumcised before the law of Moses though they lived only under the Precepts of the sons of Noach [the Hebraized spelling of Noah's name], circumcision being instituted upon a covenant w[i]th Abraham & his posterity. And therefore circumcision made men debtors to the law upon no other account then as it adopted them sons of Abraham Isaac & Jacob. For all the Israelites were obliged to the law of Moses.

The Gentiles were called not to become sons of Abraham by adoption but to believe in Jesus Christ & therefore were not obliged to circumcision & ye law of Moses, but being sons of Noach they were obliged to the Precepts of the sons of Noach. The Gentiles who observed these Precepts were allowed to live among the people of Israel & are called Proselites of justice & Proselites of the Gate, & strangers sojourning in Israel & (in the fourth Commandment) strangers within the Gates of Israel. And it was sufficient for Xtians to become such Proselites.

The Apostles therefore being consulted about obliging the Gentiles by circumcision to become the sons of Abraham & keep the law of Moses returned such an answer as imported that it was sufficient for them to observe the laws imposed upon the sons of Noah before the days of Abraham.

Some of those laws were moral & sufficiently enforced by the Christian religion; as to abstain from idolatry blasphemy & theft: others were positive; as to abstain from things offered to idols, from blood & things strangled & from fornication: that is, from communicating with the heathen in their festivals upon things offered to idols because it tends to idolatry, from blood & things strangulated because it leads to cruelty, & from prohibited weomen because of the ill consequences, whether they were prohibited untill marriage only or by reason of affinity, or of their being idolaters or during their menses.

Noah was allowed to feed upon animals provided they were killed by bleeding to death. But he was not allowed to feed upon blood least he should thirst after the blood of animals & for the sake of it become cruel & kill more animals then was necessary for food, or cut them in pieces before they were quite dead by bleeding. He was not to eat things stranguled because that sort of death is painfull. He was not to eat a limb taken off from a living animal because of the cruelty. And so Moses commanded that the people of Israel should not seeth [?seize] a Kid in the mothers milk, nor take a bird w[i]th its young nor muzzel the mouth of an Ox w[hi]ch treadeth out the corn, because such actions incline men to cruelty & savour of unmercifulness.

When Moses commanded to abstain from eating blood, & inforced his law with this reason: for the blood is the life or soul of the animal: did he not refer to an ancienter Law in use among the nations from the days of Noah, vizt, Flesh w[i]th ye life thereof thou shalt not eat Gen. 9.4, & interpret that Law by saying that the life,(Hebrew), anima, is the blood, or is in the blood. For is not this to tell us that by the life in that ancient law is to be understood the blodd? With the blood of the sacrifices you shall make an attonement for your lives or souls, but you shall not eat it because in that ancient law of the sons of Noah, the life forbidden to be eaten with the flesh, is the blood or is in the blood.

When Moses commanded to abstain from eating blood & enforced his law with this reason: For the blood is the life of the flesh, did he not refer to an ancienter Law in use among the nations from the days of Noah, vizt flesh with the life thereof thou shalt not eat, Gen, ix.4, & did he not interpret this Law by saying that the life (Hebrew), anima is the blood or is in the blood? In the Wilderness the children of Israel & the strangers which sojourned among them were to kill all their sheep & Oxen & Goats at the door of the Tabernacle & pour out their blood because is the life of the flesh & the flesh [according the Law of Nations given to Noah] was not to be eathen with the life thereof Levit xvii. 3, 4 10, 11, 13, 14. But when the Lord thy God, saith Moses, shall enlarge thy border, & thou shall say I will eat flesh: if the place which the Lord thy God hath chosen to put his name there be too far from thee thou shall kill of thy herd & off thy flock & thou shall eat in thy gates whatsoever thy soul lusteth after – only be sure that thou eat not the blood. ffor the blood is life [mentioned in the law of nations given to Noah,] & [by that Law] thou mayst not eat the life with the flesh. Thou shall not eat it, Thou shall pour it upon the earth as water. Deut. xii. 15, 20, 21, 23, 24. This Law Moses imposed not only upon the people of Israel but also upon upon the stranger who sojourned among them, & therefore looked upon it as the law of nations; not as one of the new Laws given to Israel in Mount Sina, but as an old law given by the sons of Noah presently after the flood an old law w[hi]ch needed only to be explained & enforced. When therefore Moses saith, be sure that thou eat not the blood; for the blood is the life & thou mayst not eat the life with the blood: doth not Moses in saying thou mayst not eat the life with the blood recite that ancient law & thereby enforce his prohibiting the eating of blood? And in saying be sure that thou eat not the blood, for the blood is the life, doth he not explain what is meant by (Hebrew) anima, the soul or life in that ancient law? And when in relating the history of the flood, he recites that ancient law fflesh w[i]th the life thereof ye shall not eat, doth he not insist the blood by way of explication, fflesh w[i]th the life thereof [w[hi]ch is the blood thereof] shall ye not eat? The language used by Noah might be so far antiquated in the Moses as in reciting that ancient law to need an explication.

Cain was a tiller of the ground & offered the fruit of the ground to the Lord & Abel was a keeper of sheep & offered of his flock. Sheep were therefore kept & sacrificed & eaten before the flood, & upon Noah sacrificing God renewed the license of eating it provided they eat it without (Hebrew) the blood: w[hi]ch makes it probable that blood was prohibited before the flood. Moses prohibited it & so did the Apostles to all the nations not because blood defileth him that eateth it but because the prohibition tendeth to mercy.
Quaere, whether the law be still in force.

In six or eight hundred years, languages alter very much, & the language in w[hi]ch this law was given to Noah. Flesh w[i[th the (Hebrew) thereof thou shall not eat, was given to Noah might be so allowed before the days of Moses that the word (Hebrew) Nepesh might need an explication. When therefore Moses commands both the Children of Israel & the strangers who sojourned amongst them that they should not eat the blood of animals with the flesh, & enforces his command with this reason ffor the blood is the (Hebrew) of the flesh & the fflesh w[i]th (Hebrew) thereof thou shall not eat (Levit xvii & Deut xii) & doth he not recite the ancient law of Noah: fflesh with the (Hebrew) thereof shall ye not eat, & doth he not interpret the word Nepesby saying that the blood is the (Hebrew) of the flesh? And when in relating the history of the flood he sets down that ancient law fflesh with the (Hebrew) thereof w[hi]ch is the b[l]ood thereof, shall ye not eat, Gen. ix. 4, doth he not insert the words blood thereof into the law for interpreting what is to here understood by the word (Hebrew)? ffor this word here must signify a corporeal substance w[hi]ch can be eaten & therefore not the life but ye blood in w[hi]ch the life is sealed or the blood of the life as it is called in the next words Gen ix.5.

When therefore Moses inserts the word blood into this Law in this manner Flesh with ye (Hebrew) thereof that is the blood thereof, thou shall not eat was it not for explaining what the word (Hebrew) signifies? And when Moses [saith] These things were done for food & the distinction between beasts clean & unclean before the flood sheweth what beasts were then lawful to be sacrificied & eaten & what not: God said to Noah Every moving thing that liveth shall be meat for you even as the green herb have I given you all things he repe[a]ted & reestablished an old Law. And when he added: but flesh w[hi]ch the blood thereof shall ye not eat: it may be taken for a part of that old Law. This Law against eating blood was repeated by Moses to all nations & again by the Apostles; not because blood defileth him that eateth it, but because the prohibition is a check to savageness & cruelty.
Quaere, Whether the Law be still in force?'

THE PASSAGE IN 'THE CHRONOLOGY OF ANCIENT KINGDOMS AMENDED' (1728) for which the present manuscript contains two drafts is as follows (Echo Library, 2007, p. 67):

'...This was the morality and religion of the first ages, still called by the Jews, The precepts of the sons of Noah: this was the religion of Moses and the Prophets, comprehended in the two great commandments, of loving the Lord our god with all our heart and soul and mind, and our neighbour as our selves: this was the religion enjoined by Moses to the uncircumcised stranger within the gates of Israel, as well as to the Israelites, and this is the primitive religion of both Jews and Christians, and ought to be the standing religion of all nations, it being for the honour of God, and good of mankind: and Moses adds the precept of being merciful even to brute beasts, as so not to suck out their blood, nor to cut off their flesh alive with the blood in it, nor to kill them for the sake of their blood, nor to strangle them; but in killing them for food, to let out their blood and spill it upon the ground, Gen. IX. 4, and Levit. XVII. 12, 13. This law was ancienter than the days of Moses, being given to Noah and his sons long before the days of Abraham: and therefore when the Apostles and elders in the Council at Jerusalem declared that the Gentiles were not obliged to be circumcised and keep the law of Moses, they excepted this law of abstaining from blood, and things strangled as being an earlier law of God, imposed not on the sons of Abraham only, but on all nations, while they lived together in Shinar under the dominion of Noah: and of the same kind is the law of abstaining from meats offered to Idols or false Gods, and from fornication. So then, the believing that the world was framed by one supreme God, and is governed by him; and the loving and worshipping him, and honouring our parents, and loving our neighbor as our selves, and being merciful even to brute beasts, is the oldest of all religions...'

* Source:
bonhams.com,
"Important autograph manuscript in English,
headed 'The Question stated about Abstaining from Blood'". *

Lot No: 371

NEWTON, Sir ISAAC (1642–1727, natural philosopher, mathematician and theologian)

IMPORTANT AUTOGRAPH MANUSCRIPT IN ENGLISH, HEADED 'THE QUESTION STATED ABOUT ABSTAINING FROM BLOOD', complete in itself, being two drafts, each ending 'Quaere, Whether the law be still in force?', towards a passage in his The Chronology of Ancient Kingdoms Amended (published posthumously in 1728), with extensive autograph revisions, deletions and insertions, a four-line autograph endorsement on the verso of the second leaf ('Tis not any defilement by prohibited meats but the danger of idolatry & cruelty upon w[hi]ch the prohibition of eating them is founded, not the company of weomen, but the ill consequences in certain cases w[hi]ch occasioned the prohibition in those case.'), and some words in Hebraic script: Newton grapples with the precedence of Noahide and Mosaic Laws over those of Abraham, and their meaning and application, finding that an earlier law of God imposed on all nations, not only the sons of Abraham, the avoidance of eating of blood; he also touches on the questions of circumcision and the Gentiles, fornication ('...& from prohibited weomen because of the ill consequences, whether they were prohibited until marriage only or by reason of affinity, or of their being idolaters or during their menses...'), sacrifices, blasphemy, theft, idolatry, and the cruelty of man, 2½ pages (in excess of 1,500 words), large folio (12¼ x 7⅝ inches; 310 x 194 mm), a few small stains, one short worm-track and two small worm holes, [c. 1719]

Sold for £102,000 inclusive of Buyer's Premium

Footnote:
A RARE WORKING MANUSCRIPT IN ENGLISH (MOST OF THEM ARE IN LATIN) BY NEWTON FOR PART OF THE LAST BOOK HE PERSONALLY REVISED BEFORE HIS DEATH.

Substantial autograph literary manuscripts by Newton are rarely available to collectors, those in English especially so. The present one is arguably the most important English literary manuscript by him to have appeared at auction in the last thirty-five years and more -- most of the significant sales of Newton's papers in recent years have been negotiated by private treaty.

Newton has been described as 'perhaps the greatest biblical scholar of his age' (T.G. Barnes, Science and Biblical Faith, 1993, p. 44). He was also 'an original Hebraic scholar' who 'used both Jewish history and Jewish sources heavily in his studies of the Book of Scripture' (M. Goldish, Judaism in the Theology of Sir Isaac Newton, 1998, p. 5). John Locke described his friend Newton as 'a very valuable man not only for his wonderful skill in Mathematicks but in divinity too and his great knowledg in the Scriptures where in I knew few his equals.' Newton himself wrote of his Principia to Richard Bentley: 'When I wrote my treatise about our Systeme I had an eye upon such Principles as might work with considering man for the beliefe of a Deity & nothing can rejoyce me more then to find it usefull for that purpose.'

With the recent greater availability of Newton's non-scientific manuscripts, modern scholarship has reversed the view that Newton's theological interests were an aberration of his old age. In fact he pursued them throughout his life. He was committed to the tradition of the prisca sapientia, the Renaissance idea that the ancients had possessed true knowledge about God and the world, and his surveys of Christian and Jewish theology were carried out to retrieve pure doctrine -- ancient knowledge was valid as a key to Truth. He considered his theological pursuits to be 'a duty of the greatest moment' and was convinced that God revealed himself in Scripture as well as Nature and therefore that theology and science were two sides of the same coin, two parts of the same whole, interrelated, interconnected, each throwing light on the other; God's intentions were revealed equally through science and theology - through the 'books' of Nature and of Scripture. Indeed the bulk of Newton's writings and manuscripts were on theological and alchemical [also no longer considered an aberration] subjects. He owned more books on humanistic learning than on mathematics or science and about half of Newton's manuscripts were on religious and theological subjects (mostly still unpublished) including a 429-page ecclesiastical history entitled 'Of the Church'. (S.D. Snobelen, 'To Discourse of God: Isaac Newton's heterodox theology and his natural philosophy', Ashgate, 2004; R.J. Seeger, 'Newton, Biblical Creations', Journal of the American Scientific Affiliation, 1983; J. Force and R. Popkin, Essays on the context, nature and influence of Isaac Newton's theology, 1991 - 'Newton's thought is a seamless unity of theology, metaphysics, and natural science', p. 84; J. Force and R. Popkin, The Books of Nature and Scripture: Recent Essays on Natural Philosophy, Theology, and Biblical Criticism in the Netherlands of Spinoza's Time and the British Isles of Newton's Time, 1994). In his Principia Newton himself stated: 'this most beautiful system of the sun, planets & comets could only proceed from the counsel & dominion of an intelligent & powerful being', thus placing his scientific theories within his religious beliefs.

A few days before Newton's death, Zachary Pearce, rector of Newton's home parish, St. Martins-in-the-Fields, visited him and found him 'writing over his Chronology of Ancient Kingdoms...He then told me that he was preparing his Chronology for the press, and that he had written the greatest part of it over for that purpose...' (Richard Westfall, Never At Rest: A Biography of Isaac Newton, 1998, p. 869). A possible date for the manuscript, c. 1719, is suggested by a dated bill of May 1719 in the Yahuda Manuscripts in the Jewish National and University Library on the verso of which Newton made another draft of some of the same material as is in this manuscript (Westfall, op. cit., p. 821). In The Chronology Newton used taxonomic materials to argue for the greater antiquity of the Hebraic world than any of the pagan ones and for the original revelation having been given to the Hebrews, particularly Noah and his sons.

During the great black-pudding controversies of the late seventeenth and early eighteenth centuries it was rumoured that Newton abstained from black-pudding and rabbits (whose meat remained bloody because they were killed by strangulation) on account of the Old Testament prohibition against eating blood. After his death, Newton's niece, Catherine Conduitt, defended his reputation, stating that this was a matter of ethics rather than taste, as is apparent in the present manuscript: 'He said meats strangled were forbid because that was a painfull death & the letting out of blood the easiest & that animals should be put to as little pain as possible, that the reason why eating blood was forbid was because it was thought the eating blood inclined man to be cruel.'

The matter of Newton's considerations in this manuscript is still the basis for Jewish kosher and Muslim halal methods of preparing food and for Jehovah's Witnesses' refusal to allow blood transfusions.

Religious convictions, health professionals & "the right to personal liberty and in particular to physical and mental integrity" /Θρησκευτικές πεποιθήσεις, ο κλάδος της υγείας& «το δικαίωμα στην προσωπική ελευθερία και συγκεκριμένα στη σωματική και πνευματική ακεραιότητα»

Pain Medicine,
Volume 12, Issue 11,
pp. 1684–1688 , November 2011
American Academy of Pain Medicine.

Respecting the Will of the Patient:
Between Illusions and Realities

PETR MUZNY PROF. JUDR 

DOI: 10.1111/j.1526-4637.2011.01258.x 

Wiley Periodicals, Inc.

Dear Editor,

Respect for the wishes of the informed and capable patient constitutes a fundamental legal and ethical principle, accepted to a large degree in the majority of democracies for going on 30 years now. In Switzerland, the right of individuals to self-determination seems to enjoy an even stronger recognition than in other states, the acceptance of assisted suicide being indicative of this. The right of individuals to self-determination is laid down in Swiss law in Article 10 paragraph 2 of the Swiss Constitution, dated April 18, 1999, as well as in Article 28 paragraph 2 of the Civil Code. They respectively provide that “everyone has the right to personal liberty and in particular to physical and mental integrity and to freedom of movement” and “an infringement is unlawful if it is not justified by the consent of the victim, by an overriding public or private interest, or by law.”

In other words, no infringement of the physical integrity of an individual is possible without his consent.

It is true that the law lays down exceptions under which it is possible to infringe the liberty of the individual, i.e., when an “overriding private or public interest” occurs. Such could be the mandatory vaccination of individuals against a contagious virus that poses a threat for the entire population. However, the possibility of limiting a patient's rights does not exist when the patient's choice only affects himself. Take the example of someone who refuses chemotherapy at an advanced stage of his illness; the effects of his choice are limited to himself, his family, and his relatives.

This respect for the individual's autonomy has been clearly expressed by the Federal Court, which serves, in a way, as the official and supreme interpreter of Swiss legislation. It ruled that “The right of a patient to self-determination is extremely broad, and encompasses for the one concerned the refusal of any curative practices, even if this leads to death. In effect, personal liberty grants the patient the right to live through his illness in the way he sees fitting.”[1]

Thus, in this matter, the rules are unequivocal. Nonetheless, the opinions, declarations and even the practices on the part of health professionals regularly challenge this legal and ethical reality in such a way that gives the impression that the right to self-determination is only an illusion, a mirage, unattainable for those depending on it. This is by all means what was revealed in a study carried out relatively recently and published in the journal Pain Medicine[2], regarding a number of ethical positions expressed by caregivers at the University Hospitals of Geneva (I).

We would like to offer the reader a reality check, especially in the light of a critical commentary written by an American ethicist in answer to that study, and published in the same journal [3] (II).

I. Time of Illusions

The report of the research of Cahana et al. is based on a statistical study carried out by doctors and ethicists from the University of Geneva with caregivers from the University Hospitals of Geneva.

This study was made in the course of a bioethics seminar in which 29 anesthesiologists, 41 surgeons, 21 surgical nurses, and 33 nurse anesthetists participated. The same question asked before and after the seminar was a classic case involving a patient's right to self-determination:

A 40-year-old woman, one of Jehovah's Witnesses who has to undergo an elective excision of a large hemangioma on her right forearm, to be followed by a latissimus dorsi muscle flap transplant, clearly refuses any blood transfusion. Would you give blood to the patient in the case of life-threatening danger?

The results are shown in Table 1.

Table 1.  Study results
Choice	Participants (N)
	Anesthesiologists (29)†	Nurse Anesthetists (33)	Surgeons (41)	Surgical Nurses (21)
Transfusion, % (n)	55 (16)	36 (12)	29 (12)	29 (6)
Abstaining from transfusion, % (n)	38 (11)	64 (21)	68 (28)	71 (15)
Undecided, % (n)	7 (2)	0%	3 (1)	0

^† The figures of the study for this column containing the anesthesiologists are somewhat different because they do not take into consideration the two who abstained from responding. Therefore, the results given by the authors of the study are as follows: 59% would give a blood transfusion and 41% would not transfuse. Nonetheless, we have preferred to take into account the two indecisive ones to make sure that the figures given reflect the reality more precisely.

What Do These Figures Show?

Even though a majority of caregivers would refuse to administer a blood transfusion (61% against 38%), there is one particular category of caregivers that would not hesitate to override the will of their patients: the anesthesiologists. A clear majority among them is willing to force a blood transfusion upon the patient even after they have attended a seminar dealing with ethics, as the figures earlier show.

Such an approach seems to be surprising, given the unequivocal legal regulation concerning this matter, the ethical principles favoring the autonomy of the informed and capable patient, and the fact that this group of caregivers is aware of the patient's wishes. All the more surprising, given that the decision to administer a blood transfusion ultimately rests in the hands of these anesthesiologists. Briefly then, this study reveals the attitude of anesthesiologists and shows what would happen to the patient in such a case as described earlier, especially if the patient was unconscious.

However, looking beyond the figures and percentages given, far more surprising are two other aspects revealed by the study: first, the matter of the rationales chosen by the anesthesiologists in order to justify their choice to override the will of the patient, and second, the relatively accommodating way in which the authors of the study interpreted the figures, authors who themselves are specialists when it comes to questions of medical ethics. What are these two arguments?

According to the authors of the study, two rationales are brought to the fore by those in the group who would refuse to heed the patient's choice.

First, the overriders (OVRs)¹ of the patient's will would administer a blood transfusion to the patient because they doubted whether he “really understood what it means to die,” and second, because the OVRs refer to their own feelings of compassion in making themselves defenders of the patient's well-being.

Concerning the first argument, they explained their choice as being the need to take into account the consequences for the patient, especially of the risk of death. They stated that the evaluation of the degree of the patient's autonomy must be undertaken in the light of the specific context of a treatment that could carry fatal risks for the individual.² In other words, it is implied that the level of requirement must be particularly strict in this type of case, more so than in other situations where vital prognosis is not undertaken.

Regarding the second argument, the researchers say it is not enough to be technically competent to be a good doctor; at the same time, he must show compassion toward the patient.

That means taking into account the patient's existential needs that therefore prevent him from “obeying” the patient's choice, and all the more so as it is the anesthesiologists, from among all the medical team members, who have to render an account to the institution regarding the negative consequences, which could be brought about by the patient's choice.³

What Can Be Made of Such Comments?

Even though these comments seem to represent good reasoning per se, under strict scrutiny, it appears that they are purely theoretical, in discrepancy with reality.

So, let us get back to reality.

II. The Return to Reality

We shall take up these two rationales or arguments one after the other. We will also include the expressions of Dr. John D. Banja from his critical commentary, written as a response to this study.

The Argument Concerning the Lack of Capacity to Discern the Negative Consequences of the Choice of Treatment

It goes without saying that the choice of treatment in a vital issue is of a far greater magnitude than, for example, making choices regarding what type of automobile or clothes to buy. Therefore, it is to be assumed, when life is at stake, that the evaluation of a patient's capacity to choose a treatment must be realized in an especially careful and attentive way. But this does not at all mean that a patient who chooses a potentially dangerous health treatment must automatically be considered as being someone incapable of discernment. However, this is exactly what the OVRs, as well as the authors of the study, seem to insinuate—even more so as the study does not detail the psychological characteristics of the patient in question—and the OVRs responded without even asking about the reality of the patient's capacity to consent to treatment.

Here are some questions that the medical personnel should have asked themselves before they responded to the questions in the survey:

·         Knowing that the law presumes the existence of the capacity of adult patients, are there solid reasons that allow me to doubt such, simply because of the fact that a patient chooses a treatment that is contraindicated and liable to be fatal to him?

·         Because it is all about the patient's ability to take a reasoned decision, did he have at his command enough information in order to make his choice? Is he fully aware of the attendant circumstances of the situation and particularly of the medical diagnostics, of the recommended therapeutic intervention, of the induced risks as a result of his choice, and the phase through which he risks crossing the borderline between life and death?

·         What is it that leads the patient, despite everything, to opt for a contraindicated treatment?

·         Finally, has he come under external pressure, which could suppress his discernment?

As far as we know, the seminar did not deal with such questions and even less with the answers to such questions. This could have been a “trap,” which perfectly served the interests of the organizers of the seminar, thus precisely allowing the participants to omit this fundamental methodological aspect from now on when it comes to evaluating situations—and all of this under the mantle of education. However, it seems that such was not the case, because the organizers of the seminar made no reference to such aspects in their written record. Besides, following the title of their study, it can be seen that the authors found the most interesting point to be the difference in behavior of the different groups of caregivers, rather than the reasons for their behavior. The methodological approach to ethics was not highlighted.

The seminar would have been more realistic and effective if it had helped the participants to ask themselves questions concerning patients' capacity for discernment when it comes to such types of issues. This would have allowed these caregivers to acquire a consistent methodological approach rather than coming forward retrospectively with a contradicting argument in order to justify their behavior.

In the critical article in response to this study, Dr. John D. Banja shares the idea that the patient was endowed with capacity to choose his treatment. Thus, he confronts the OVRs with a fundamental fact. According to him, believing that a patient who is a Jehovah's Witness, otherwise intelligent and discerning, is not capable of understanding the concept of death, is devoid of common sense.

In reality, based on existing research in the field of psychology, children at the age of 9 years already start to form an idea about death. In addition, believing that a mature and intelligent person does not know what it means to die is tantamount to saying that he has never seen, read, or understood information about death, and that he has never asked questions about the philosophical or religious concepts of this subject. Indeed, if an otherwise thoughtful and mature patient who is a Jehovah's Witness does not understand the meaning of death, why should we think any other patient does who refuses life-saving treatment, e.g., dialysis, cardiopulmonary resuscitation, artificial ventilation, etc.? But that would mean agreeing to go back in time several decades, to the time of primitive paternalism, which, it is easy to imagine, is neither wished for by medical professionals nor by patients.

Further, the author concludes that where the medical professional doubts whether the patient who is a Jehovah's Witness knows what death means, then you only need to do a very simple thing: just ask him. With these remarks, Dr. Banda pinpoints a fundamental element of the doctor-patient relationship that everyone knows about, but which tends to be put aside at particularly critical moments in favor of supposed medical efficiency: communication full of empathy, and it is especially at risk when it is most needed.

The Argument Concerning the Compassionate Approach of the Physician Who Favors the Patient's Need to Survive

The authors of the study are completely right in stating that the competence of a medical professional cannot only be measured by his technical skills, but also by his personal qualities. Indeed, there are times in the medical field, as in other scientific fields, when the personality of the medical professional as well as his capacity to feel the frailty of the patient in his own heart, are necessary to preserve mutual trust, which is absolutely essential in the doctor–patient relationship.

This empathy, however, should not be interpreted as a way to discard the patient's wishes. To the contrary, empathy, with its capacity to put oneself into another person's shoes, as it were, aims at conscientiously taking into consideration the ethical stance of the patient. It is not a matter of projecting one's own values onto the patient, but rather, to understand those values that inspire this particular patient. As Dr. Roggo confirms: “This is often disagreeable and creates extra work. This additional work, however, also could be the consequence of insufficient work, in extreme cases it could even be an expression of human and professional incompetency”[4]. Understanding is not the same as agreeing or joining. Indeed, it would be very difficult for a caregiver who is, for example, an atheist, to understand that a patient who is a Jehovah's Witness, is convinced that God would resurrect him to everlasting life if he respects the biblical command to abstain from blood and thus refuses a treatment, which this medical professional considers life-saving (“Witnesses believe that blood transfusion is prohibited by Biblical passages such as Acts 15:19–21, which say ‘Abstain  . . . from fornication and from what is strangled [unbled meat] and from blood.’ This first century apostolic decree, which was repeated at Acts 21:25, took into consideration the divine command given to Noah, the common ancestor of humankind, according to the Biblical record, and its reappearance in the Mosaic Law over 850 years later (Genesis 9:3, 4; Leviticus 7:26, 27; 17:1, 2, 10–12; Deuteronomy 12:22–25)”) [5].

For example, he could ask himself the following series of questions:

·         Can I impose my personal view of things on the capable patient simply because I am the medical professional and because these values are commonly shared by a large number of individuals in society?

·         Is it so that I am certain to be right from both the medical as well as from the moral point of view?

·         Could it be that I consider the patient to be like a corpse denuded of spirit which I have to save at all costs? Are there not other people—firefighters, mountain rescuers, soldiers, etc.—who are willing to sacrifice their lives for values they consider nobler, without my considering them as lacking discernment? [6]

·         Finally, would I wish to live in a society in which, in the name of a universal truth, which stipulates which are the best choices for life, people would be forced to abstain from alcohol, to abstain from eating fondue, to exercise five times a week, and to be under an obligation to strive to live as long as possible?

Here are so many delicate questions that could help the medical professional to see more clearly the reality of the motives that inspire him and to help him to apply true empathy in the relationship, which binds him to the patient whose requests surpass the ordinary.

In his study, Dr. Banja develops other arguments. He shows that the medical professional may feel compassion for the patient in question because he himself may suffer upon seeing the patient subjected to the merciless consequences of his beliefs. But he forgets at the same time that these feelings of compassion are based on the values held by the individual and that these are not necessarily shared by others.

According to him, true protection of the patient's rights requires that the medical professional undertakes the effort to respect the way of thinking of the patient who is a Jehovah's Witness, even though he feels pained to realize that the patient prefers to give priority to gaining everlasting life, rather than to a temporary prolongation of his present life. The fact that the OVRs would reject this hierarchy of values by negating the patient's will gives way to a paternalistic attitude, which is exactly the opposite of a compassionate one.

Finally, the author has serious questions even regarding the very foundations of the choice made by the OVRs. On the basis of research done by psychologists in the 1950s on the theory of dissonance, he explains that all human reasoning pursues a specific goal. And when such reasoning corresponds with his own behavior, the individual often has the tendency to justify his own choices in order to find excuses or to ensure that the information or the events that are in disagreement with his own hierarchy of values, fit in, one way or another. This is because of the fact that the majority of us ponder over things while having a high opinion of ourselves, of our own capacity, values and choices—and one has to admit—members of the medical professional are no exception. To the contrary, their highly respected professional status, the constant dependency of the patients on their professional capacity, and therefore their obvious natural superiority over the patient pushes them to develop a firm personality imbued with strong self-confidence.

It is therefore fully understandable that when a “troublemaker” such as a patient who is a Jehovah's Witness does not agree with the logic of the medical professional, the latter would have to put forward a great effort in order to comprehend his alter ego, because he has to let go of his own autonomous reflections for a heteronomous approach. This is especially the case when the life of the patient is at stake and the logical thought of the medical professional would be to use commonly accepted medical techniques in order to rescue the patient and to save his life. One can understand here how the personal qualities of the caregiver are essential in view of such a task. Will the medical professional be capable of taking a little bit of time out of his already busy workday in order to try to understand the particularities of his patient? Will he be able to prove his humility by putting aside his own prejudices? The task is not easy. Nonetheless, it is here where his work challenges him, because—let us not forget—he has agreed to serve the patient [7]. It is here where finally true medical ethics begin, based upon genuine respect for the patient and which truly establishes a treatment worthy to be called a therapy. For what merit has the caregiver as regards tolerance when he only respects and cares for patients who quietly submit themselves willingly to his point of view?

Let us be reassured, however, that the task is not insurmountable.

As far as patients who are Jehovah's Witnesses are concerned, especially in the United States, quality ethical workshops are organized on a regular basis in collaboration with the Hospital Liaison Committees of Jehovah's Witnesses [8] with the aim of best managing such delicate situations. They help the participants particularly to determine the patient's unambiguous capacity for discernment and whether external pressures possibly exist. By the way, hospital management plays a fundamental role when it comes to encouraging its staff to have such an open approach, knowing that it helps the staff to give such patients better treatment. Finally, medical professionals also have sufficient legal information in order to know that they could be prosecuted, should they brush aside the will of the capable patient in order to enforce their own wishes [9] (see also Trechsel and Noll [10]).

In conclusion, even though the results of the study of Cahana et al. as well as the commentaries of these authors are somewhat surprising and disappointing, they still have the merit of pin-pointing current incoherencies and weaknesses regarding ethical and legal practices that can take place even in a well-reputable hospital. Realizing this makes it possible to react, because the worst thing is not that such situations occur but rather, that they persist without anything being done to remedy it.

Therefore, it would be fitting if hospital authorities would seize the opportunity to help their entire body of medical personal to acquire a real ethical approach based on empathy toward the patient whatever the circumstances. From this we all would benefit.

Summary

Under Swiss legislation, the right of the informed and capable patient to self-determination is absolute. Nevertheless, a statistical survey undertaken at the University Hospitals of Geneva reveals that the reality is markedly different in the mindset of a number of caregivers, particularly among anesthesiologists and especially when they consider that the patient's choice could be fatal. It is the object of our article to examine carefully the two main arguments put forward in this survey by the caregivers, for overriding the patient's will. We shall conduct our considerations in the light of a second, critical article, which appeared sometime later, in the same journal, in answer to the first statistical study published.

Notes

·         1 Banja (2009, 878).

·         2 Cahana A, et al. (2008, 734).

·         3 Ibid.

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