Health

Doe v. Clalit Health Services

Case/docket number: 
CA 8710/17
Date Decided: 
Tuesday, August 6, 2019
Decision Type: 
Appellate
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

 

An appeal of a District Court judgment denying the Appellants’ lawsuit for wrongful birth of their daughter, who has Down’s Syndrome. The appeal focused on the scope of the duty of disclosure imposed on an attending physician, which was divided into two sub-questions: Does the duty of disclosure require a physician to disclose religious information regarding obligations and restrictions that derive from a patient’s religious belief or law that are relevant to the medical treatment? Is a physician obligated to provide patients with medical information that is adapted to obligations and restrictions of this nature? An additional question addressed was whether to raise the standard of disclosure required of a physician who customarily expanded on the information disclosed to his patients to include religious information or medical information adapted as noted above, in light of the Stern rule.

 

The Supreme Court (per Justice Willner, Justices Hendel and Mintz concurring) denied the appeal, holding:

 

First, the Court, per Justice Willner, discussed the normative framework relevant to the obligation to obtain informed consent for medical treatment and the duty of disclosure that derives from it, noting that the issue of breaching the duty of disclosure would be addressed in light of the tort of negligence, given the Appellants’ choice to sue on those grounds.

 

The Court held that, according to the relevant statutory provisions and the case law, the duty of disclosure imposed on physicians is limited to medical information alone, and does not include religious information related to restrictions and obligations of religious faith. In other words, a physician is not required to provide a patient with religious information relevant to his medical care. The Court held that it would be inappropriate to expand the scope of the duty of disclosure to adapting medical information to the patient’s religious characteristics when there is no medical indication for such disclosure. That is notwithstanding the recognition that a patient’s intelligent decision is naturally also informed by considerations that derive from his religion and beliefs.

 

The Court noted that, in the context of the duty of disclosure, a physician is not required to adapt the medical information he provides to a patients’ religious beliefs and restrictions if they arise in the framework of an inquiry initiated by the physician or derive from a presumption based on external factors that would appear to indicate the patient’s religion.

 

The Court held that only when the patient, at his own initiative, asks the physician for medical information adapted to his religious characteristics, is the physician required to disclose this type of information to the patient. That is because when a patient initiates such a request, his question changes the nature of the relationship between the physician and the patient, creating a different standard of disclosure based on the patient’s expectation of receiving medical information conforming to his request. In that case, the physician bears a duty to disclose all the individual information that is relevant for the patient, in accordance with his request, in the framework of the test of reasonableness and the other tests that apply to the tort of negligence.

 

If the patient wants to receive medical information adapted to his religious characteristics, namely a right of disclosure that goes beyond the customary duty of disclosure, he bears the burden of requesting it from the physician. Note that even when the patient asks his physician for medical information adapted to  individual religious characteristics, the physician is not required to disclose religious information to him, but only adapted medical information. That is because religious information is beyond the bounds of the physician’s expertise in his role as a physician. It is therefore inappropriate to include such information within the duty of disclosure.

 

Applying the above to the circumstances of the case at bar led to denying the Appellants’ arguments regarding breach of the duty of disclosure by the Respondents.

 

The Court noted that, according to the Stern rule, once a medical institution adopts practices and procedures that are more stringent than the customary practice, it demonstrates that it possesses the information required to operate with extra care and caution. Thus, it has been held that the standard of reasonable conduct that such an institution is required to maintain should be “elevated” by attributing the specific medical institution’s unique knowledge and expertise to the test of the reasonable medical institution, according to which that institution’s conduct is evaluated. The Court rejected applying the Stern rule to the present case, holding that the lower court correctly found no basis for raising the standard of conduct required of the Respondents to the point of requiring them to disclose information to patients about religious restrictions or medical information adapted to individual religious characteristics, just because it was allegedly their practice to do so.

 

Justice Mintz concurred in the opinion of Justice Willner and added that the attending physician should completely avoid providing “religious information” or medical information adapted to the religious characteristics of a patient if not requested to do so, if only because of the physician’s lack of knowledge about such religious characteristics, which are completely beyond his professional medical expertise. That is true even if the physician has acquired extensive religious-legal knowledge as a result of his clinical experience.

 

Justice Hendel concurred with the main points of Justice Willner’s opinion, but was of the opinion that there may be situations in which a physician would do well to provide patients with religious information that he knows, even indirectly, but he would not hold that there is a duty to do so. Justice Willner disagreed with that position because disclosing religious information is not the obligation of the physician, and it is completely beyond the bounds of his role and expertise. Justice Willner also did not agree with Justice Hendel’s suggestion that a physician would do well to inform a patient of the option of speaking with rabbis or other religious leaders whose opinions may differ from those of the patient’s rabbi, or offer to speak with the rabbi advising his patient, because doing so would unequivocally deviate from the role of the physician and could be interpreted as violating the patient’s sensibilities.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

CA 8710/17

 Appellants:                  1. A.

                                    2. B.

                                               

                                    v.

 

Respondents:              1. Clalit Health Services

                                    2. C.

 

Appeal of judgment by the Haifa District Court of October 6, 2017, in CC 54431-06-14 by Judge A. Toubi

 

 

Supreme Court Cases Cited:

[1]        CA 3056/99 Stern v. Haim Sheba Medical Center, 56(2) IsrSC 936 (2002)

[2]        CA 2781/93 Daaka v. Carmel Hospital, Haifa, 53(4) IsrSC 526, 549 (1999) [https://versa.cardozo.yu.edu/opinions/daaka-v-carmel-hospital]

[3]          CA 4960/04 Sidi v. Clalit Medical Fund, 60(3) IsrSC 590 (2005)     

[4]        CA 1303/09 Kadosh v. Bikur Holim Hospital (unpublished) (March 5, 2012)

[5]        CA 6153/97 Stendhal v. Sadeh, 56(4) IsrSC 746 (2002)

[6]        CA 3108/91 Ravi v. Veigal, 47(2) IsrSC 497 (1993)

[7]        CA 434/94 Berman v. Mor Institute for Medical Information, Ltd. 51(4) IsrSC 205 (1997)

[8]        CA 8126/07 Estate of Zvi v. Bikur Holim Hospital (unpublished) (January 3, 2010)

[9]        CA 1997/10 Tsoref v. Rosenbaum (unpublished) (February 13, 2012)

[10]      CA 10306/08 Shmueli v. Mor Institute for Medical Information, Ltd. (unpublished) (March 16, 2011)

[11]      CA 2600/09 Maccabi Health Services v. N.S. (unpublished) (November 10, 2013)

[12]      CA 7416/12 Meuhedet Health Fund v. A. (unpublished) (November 4, 2014)

[13]      CA 6936/09 Yehuda v. Clalit Health Services (unpublished) (March 5, 2012)

[14]      CA 2342/09 N.G. v. Clalit Health Services (unpublished) (April 6, 2011)

[15]      CA 1615/11 Ein Tal Clinic – Ophthalmology Center v. Finkelstein (Albalah) (unpublished) (August 6, 2013)

[16]      CA 718/06 Satkhi v. State of Israel (unpublished) (October 30, 2007)

[17]      CA 7756/07 Gerstel v. Dan (unpublished) (December 21, 2010)

[18]      CA 8693/08 Herman v. Sternberg (unpublished) (March 24, 2011)

[19]      CA 119/05 Halifa v. State of Israel (unpublished) (September 10, 2006)

[20]      CA 355/11 Hadassah Medical Organization v. Meuhedet Clinic (unpublished) (February 9, 2015)

[21]      CA 1326/07 Hammer v. Amit (May 28, 2012) [https://versa.cardozo.yu.edu/opinions/hammer-v-amit]

[22]      CA 5604/94 Hemed v. State of Israel, 58(2) IsrSC 498 (2004)

[23]      CA 9936/07 Ben David v. Entebbi (unpublished) (February 22, 2011)

 

 

District Court Cases Cited:

[24]      CC (Jerusalem District Court) 19055-12-13 Abu Dahesh v. Clalit Health Services (unpublished) (February 10, 2016)

[25]      CC (Haifa District Court) 195060-07-14 R.A.B. v. Clalit Health Services (unpublished) (December 18, 2016)

[26]      CC (Tel Aviv District Court) 39999-05-13 P.A. v. Rafaelov (unpublished) (December 25, 2014)

[27]      CC (Haifa District Court) 16010-02-16 A.P. v. Odeh (unpublished) (June 20, 2019)

[28]      CC (Tel Aviv District Court) 5691-12-08 M.N. v. State of Israel – Ministry of Health (unpublished) (September 22, 2013)

 

U.S. Cases Cited:

[29]      Piper v. Cumberland Med. Ctr., 2017 Tenn. App. 33 (2017)

[30]      Canterbury v. Spence, 409 U.S. 1064, 464 F.2d 772, 786 (D.C. Cir. 1972)

[31]      Fain v. Smith, 479 So. 2d 1150, 1155 (1985)

 

 

 

The Supreme Court sitting as a Court of Civil Appeals

(August 6, 2019)

Before: Justices N. Hendel, D. Mintz, and Y. Willner

 

Judgment

 

Justice Y. Willner:

Does a physician’s duty of disclosure include the duty to disclose religious information or medical information adapted to a particular patient’s religious beliefs? That is the central question presented by this appeal.

  1. This is an appeal of the Haifa District Court’s judgment (Judge A. Toubi) in CC 54431-06-14 of October 26, 2017, rejecting the Appellants’ suit for wrongful birth in regard to the birth of their daughter, who has Down’s Syndrome.
  2. At the age of 41, Appellant 1 (hereinafter: the Appellant) was pregnant for the sixth time, and her prenatal care was mostly conducted through Clalit Health Services (hereinafter also: Clalit). The relevant medical records show that due to the Appellant’s age, the medical staff began providing her with prenatal care in the first weeks of her pregnancy, and explained a number of times the importance of undergoing various tests, including chorionic villus sampling,  amniocentesis, antenatal ultrasound scans and nuchal translucency screening. However, the medical records indicate that the Appellant decided not to undergo chorionic villus sampling and preferred to wait until it would be possible to undergo amniocentesis.
  3. During week 12+6 of her pregnancy, the Appellant underwent a nuchal translucency screening. The results indicated a high risk that the fetus had Down’s Syndrome. Accordingly, the Appellant was referred to genetic counseling, and again the possibility of undergoing an amniocentesis was explained to her. She was even referred to a genetic clinic so that, inter alia, she could undergo amniocentesis.
  4. During week 14+2 of her pregnancy, the Appellant came to the Clalit Health Services clinic in Nazareth for genetic counseling by Prof. Joel Zlotogora (hereinafter: the genetic counselor), after which Prof. Zlotogora noted in the medical records that he recommended that the Appellant undergo amniocentesis.
  5. An antenatal ultrasound scan and blood test that the Appellant underwent in the 16th and 17th week of her pregnancy indicated problematic results, and the medical records indicate that the importance of undergoing amniocentesis to diagnose the fetus’s condition was repeatedly explained to her.
  6. During week 18+5 of her pregnancy, Respondent 2, Dr. Yaakub Zakrian, an obstetrics and gynecology specialist at Clalit, referred the Appellant for amniocentesis, which she underwent during week 20+2 of her pregnancy. The results, which were received during week 23+1, indicated that the fetus had Down’s Syndrome. The next day, the Appellant and her husband, Appellant 2 (hereinafter: the Appellant’s husband), met with Dr. Hazanchuk, who performed the amniocentesis. During that meeting, Dr. Hazanchuk explained the results of the amniocentesis and their significance and referred them urgently to the Termination of Pregnancy Committee. Two weeks later, at an additional visit with Dr. Zakrian, he also explained to the Appellants the significance of the amniocentesis results and raised the possibility of terminating the pregnancy.
  7. However, after receiving the results of the amniocentesis, the Appellant’s husband went to a Muslim clergyman, who informed him that the Islamic religion prohibits terminating a pregnancy later than 120 days from conception (hereinafter: the 120-day limit). Given that the time period for terminating the pregnancy according to their religious faith had, as noted, passed, the Appellants decided to continue the pregnancy. On November 13, 2007, the Appellants’ daughter was born, and she had Down’s Syndrome.
  8. The Appellants then filed a tort suit in the District Court against Clalit and against Dr. Zakrian on the grounds of medical malpractice. In their lawsuit, the Appellants primarily argued that throughout the pregnancy, they were not informed of the possibility of conducing a FISH test – a test that would have facilitated early discovery of the fetus’s condition, as well as an informed decision regarding terminating the pregnancy before 120 days had passed from the date of conception. The Appellants added that the negligence in this case was particularly serious, given the fact that it was a clinic dedicated to treating Muslim women, such that the Respondents were aware of the 120-day limit. It was further argued that, although the FISH test requires an additional payment, the Respondents should have disclosed to the Appellant that she had the option of undergoing it, as the Appellant had undergone an antenatal ultrasound scan and nuchal translucency screening privately, indicating that she does not take risks, and that had she known about the existence of the FISH test she definitely would have been willing to pay to have it performed. It was also argued that the amniocentesis that the Appellant underwent was done too late, and that the Respondents should have performed it earlier, so that its results would have been available before 120 days had elapsed from the date of conception.

Regarding the genetic counseling, it was argued that Prof. Zlotogora was negligent in not asking the Appellant about her religious beliefs, and that he also breached his duty of disclosure by refraining from informing the Appellant about the 120-day limit.

The Appellants also raised alternative arguments, in the event that the court ruled that the Respondents did not owe them a duty to disclose religious information or medical information adapted to their religious restrictions. In that context, the Appellants argued that Dr. Zakrian customarily informed patients about the possibility of performing a FISH test, and that Prof. Zlotogora customarily informed Muslim patients about the 120-day limit. It was thus argued that the Respondents’ conduct regarding this issue should be evaluated according to the higher standard of disclosure with which they customarily conducted themselves. In that context, the Appellants relied on this Court’s decision in CA 3056/99 Stern v. Haim Sheba Medical Center [1] (hereinafter also: the Stern rule), which held that the conduct of a medical institution that has adopted a more cautious practice than is customary for a reasonable medical institution will be evaluated according to the more stringent standard of conduct that it has adopted.

The Appellants also argued that Prof. Zlotogora’s medical notes were inadequate, and that they did not include, inter alia, details of the information that was provided to the Appellant regarding the possibility of performing a FISH test, nor did they contain documentation about an inquiry into her religious faith. Thus, the Appellants argued that the District Court should have started from the assumption that Prof. Zlotogora indeed refrained from asking the Appellant about her religious beliefs and did not inform her of the possibility of performing a FISH test, as noted.

  1. On the other hand, the Respondents argued that from the early stages of the pregnancy, the Appellant was informed of the relevant risks of her pregnancy, and she was given the required explanations according to accepted medical practice. Despite that, it was argued, the Appellant preferred at first not to terminate the pregnancy until there was definitive confirmation of the fetus’s status through an amniocentesis, and even afterward, the Appellants consciously decided to refrain from terminating the pregnancy. Thus, it was argued that the Respondents’ aforementioned decision severed any chain of causation between the prenatal care and the birth of their daughter.

It was also argued that it is not the role of physicians to enquire into their patients religious beliefs or discuss the restrictions related to them, and that requiring physicians to do so would impose an unduly heavy burden on them. Furthermore, it was argued that asking patients about their religious beliefs could infringe their right to privacy. Thus, the Respondents argued that even if Prof. Zlotogora did customarily talk with patients about their religious faith, it would be inappropriate to make such conduct a mandatory standard.

Given the aforesaid, it was argued that once the Appellant refrained from informing the medical staff providing the prenatal care about the 120-day limit, there was no reason to deviate from the customary practice regarding the dates for performing the necessary tests and diagnosing the condition of the fetus.

 

The District Court Judgment

  1. In its judgment, the District Court rejected the Appellants’ lawsuit for a number of reasons.
  2. , it was held that the Respondents cannot be found to have acted negligently toward the Appellant, because the Appellants themselves consulted with a member of the clergy only after receiving the results of the amniocentesis, and in any event, the Appellants did not inform the medical staff about the 120-day limit during earlier phases of the prenatal care. Instead, it was held, the Appellant wanted to exhaust all stages of the medical examination, and decide whether to continue the pregnancy only after definitive confirmation of the fetus’s condition through an amniocentesis – even though the results of the additional tests performed where explained to her, as were the risks arising from such results. It was also held that a FISH test is a test that provides only partial results, and it is not included in the basket of publicly funded health services. The District Court therefore held that in the absence of a medical reason for urgency, as noted, there were no grounds for urging the Appellant to undergo an amniocentesis at an earlier stage, or for informing her of the possibility of performing a FISH test.

Given that conclusion, the District Court refrained from ruling on the factual dispute between the parties regarding the question whether the Appellant was informed of the possibility of performing a FISH test. Similarly, it was held in that context that Prof. Zlogotora’s notes following the genetic consultation were indeed inadequate, but they did include a notation that he had recommended that the Appellant to undergo amniocentesis, and that is sufficient in our case.

  • , it was held that it was not the duty of the medical staff to ask the Appellant about her religious beliefs or to discuss her religion’s obligations with her. In that context, it was held that asking patients about their religious affiliation, their level of observance and similar questions would likely infringe their right to privacy, and that requiring physicians to adapt the information they provide patients to particular religious obligations would impose an undue burden on them, and might even undermine the uniformity of the care provided to different patients.  
  • , it was held that even if Prof. Zlotogora customarily discussed patients’ religious beliefs and the restrictions related to them, the Stern rule should not be applied in our case, because it is the practice of a single physician, it concerns information that is not medical, and the practice is not in itself desirable – as noted above.

 

The Current Appeal

  1. In their appeal, the Appellants focus their arguments on the breach of the duty of disclosure. In this context, they mostly repeat the arguments they made before the District Court. Thus, it was argued that Dr. Zakrian breached his duty of disclosure by not informing the Appellants of the possibility of performing a FISH test, and that Prof. Zlotogora breached his duty of disclosure by refraining from discussing the 120-day limit with the Appellants. It was also argued that the aforementioned negligence of Dr. Zakrian and Prof. Zlotogora constitutes a deviation from the standard of care that they themselves had adopted in their medical work up until that point, which is binding upon them pursuant to this Court’s ruling in the Stern case, which, they argue, should be applied in our case, as well.

Additionally, it was argued that the District Court erred in holding that the question of the Respondents’ negligence is affected by the fact that the Appellants consulted with a member of the clergy only after receiving the results of the amniocentesis. According to the Appellants, that fact could be relevant only after ruling on the liability of the Respondents, via the doctrine of contributory negligence. Similarly, the Appellants repeat their arguments regarding Prof. Zlotogora’s inadequate medical notes and regarding the delay in performing the amniocentesis, as well as in transmitting its results to them after 120 days had elapsed from the date of conception.

  1. The Respondents rely on the District Court’s decision, and mostly repeat the arguments they made before that court. Similarly, the Respondents argue that Dr. Zakrian customarily informed his patients about the possibility of performing a FISH test only when patients complained about the prolonged wait for the results of the amniocentesis. Thus, it is argued that the Appellants did not prove the existence of a more stringent medical practice that could raise the standard of care required of Dr. Zakrian.

 

Discussion and Ruling

  1. This appeal focuses upon two central questions: first, the issue of the scope of the duty of disclosure imposed on the attending physician – does it also include disclosing religious information regarding obligations and restrictions deriving from religious faith, as well as disclosure of medical information that is adapted to religious characteristics of this kind? Even if we answer that question in the negative, we need to rule on an additional question, which is: should we raise the standard of the duty of disclosure required of a physician who customarily expands his disclosure to his patients to include religious information or medical information adapted as noted, in light of the rule established by this Court in the Stern case.

Below, I will address these questions in order – first-first and last-last – but first, I will begin by setting out the normative framework for our discussion.

 

Duty of Disclosure – the Normative Framework

  1. Our legal system ascribes great importance to a person’s right to autonomy, in light of which it has been held, inter alia, that one cannot provide treatment or subject someone to a medical procedure without consent (See: Amos Shapira, “Haskama Midaat” Litipul Rifui – Hadin Hamatzui Viharatzui [“Informed Consent for Medical Treatment – De Lege Lata and De Lege Ferenda], 14 Iyunei Mishpat 225, 225-226 (5749); Ruth R. Faden & Tom L. Beauchamp, A History and Theory of Informed Consent, 7-9 (Oxford University Press, 1986)). In order for a person to genuinely exercise the aforementioned right to autonomy, it is incumbent on that consent to be “informed consent”, meaning consent that derives from orderly, intelligent consideration of the medical information and the entirety of relevant risks and prospects.

However, in general, the average patient does not possess medical information of this kind, and thus places his trust in his physicians – they are the experts in the medical field, and they possess extensive medical knowledge, as well as the ability to delve into the relevant information and process it as needed. The gaps in information and understanding between a patient and a physician therefore require the latter to present the patient with “appropriate information regarding his or her condition, the nature of the treatment recommended and its purpose, the risks and prospects entailed, and the reasonable alternatives to the treatment proposed” (CA 2781/93 Daaka v. Carmel Hospital, Haifa [2]; see also: CA 4960/04 Sidi v. Clalit Medical Fund [3] 600; CA 1303/09 Kadosh v. Bikur Holim Hospital [4], para. 16 of Deputy President E. Rivlin’s opinion;  Assaf Yakov, Gilui Naot V’haskama Mudaat [ Disclosure and Informed Consent], 31(3) Iyunei Mishpat 609, 641 (2009); Adi Niv-Yaguda, Ikaron Hahadadiut Bamifgash HarefuiBein Hovat Hagilui (Mitapel) La’ahrayut Hamitupal V’Hovat Hayidua” [The Principle of Reciprocity in the Medical Meeting – Between the Duty of Disclosure (Provider) and the Patient’s Responsibility and “the Duty to Inform”], 13 Alei Mishpat 183, 191-193 (2016); On the duty of disclosure as a “an obligation of trust” that the physician owes his patients, see: Yossi Grin, Hovat Emun Shel Rofeh – Bein Hama’arehet Ha’ezrahit Latzvait [A Physician’s Duty of Trust – Between the Civilian and Military System], in Hovot Imun Badin Hayisraeli [Fiduciary Duties in Israeli Law] 321, 331-333 (Ruth Plato-Shinar and Joshua Segev, (eds.) 2016)).

  1. The duty to obtain informed consent prior to providing medical treatment, like the duty of disclosure that derives from it, were expressed in Chapter D of the Patient’s Rights Law, 5756-1996, and in Chapter D1 of the Medical Ethics Rules (See: The Ethics Bureau of the Israeli Medical Association, Etika Rifuit – Klalim V’niyarot Emda [Medical Ethics – Rules and Position Papers], (Tami Karni (ed.), 2018)). Having said that, an appropriate venue for addressing the breach of the duty of disclosure has yet to codified in an orderly fashion. Therefore, the issue can be examined in a number of ways. Thus, inter alia, one can argue that a breach of the duty of disclosure constitutes a breach of a statutory duty (See sec. 63 of the Civil Wrongs Ordinance [New Version]), and that it constitutes negligence pursuant to sec. 35 of the Civil Wrongs Ordinance (for an extensive discussion of the multiplicity of potential homes for the duty of disclosure – positive and normative – see the Daaka case, pp. 544-548; CA 6153/97 Stendhal v. Sadeh [5],  759-760; the Kadosh case, paras. 14-25 of Justice Y. Amit’s opinion; Nili Karko-Eyal, Doktrinat “Hahaskama Mida’at” – Ilat Hatvia Har’uya Makom Shebo Hufra Zchut Hamitapel L’autonomia [The Doctrine of “Informed Consent” – The Appropriate Cause of Action for Suit when the Patient’s Right to Autonomy has been Violated], 49 Haparklit 181 (5767)). In our case, the Appellants chose the path of the tort of negligence, and they focused their arguments before the District Court on that tort. I will therefore devote the following discussion to it.

 

The Nature and Scope of the Duty of Disclosure

  1. What is the scope of the information that a physician must disclose to a patient in the context of the duty of disclosure imposed on him as aforesaid, and what is the standard for delimiting the scope of this duty?

First and foremost, as noted above, we find an answer to this question in sec. 13(b) of the Patient’s Rights Law, which states:

           

(B) In order to obtain informed consent, the clinician shall provide the patient medical information to a reasonable extent, so as to enable the patient to decide whether to agree to the treatment proposed. For this purpose, “medical information” includes:

 

(1) The diagnosis of the patient's medical condition and its prognosis;

(2) A description of the essence, course, goal, anticipated benefit, and likelihood of success of the treatment proposed;

(3) The risks entailed in the proposed treatment, including side effects, pain, and discomfort;

(4) The likelihood of success and the risks of alternative forms of treatment, and of nontreatment;

(5) Where the treatment is innovatory, the patient shall be so informed (emphasis added – Y.W.).

 

This provision is relevant to our case because it has been held on more than one occasion that “the standard of conduct established by the law constitutes an indication of the level of conduct in the tort of negligence … therefore, breach of the duty of disclosure under the Patient’s Rights Law can constitute an indication of deviation from the level of disclosure required as part of the tort of negligence” (Kadosh case, para. 22 and references there; See also: Yaakov, pp. 626-627); And the reverse is true (see: Yisrael Giladi, Dinei Nizikin – Gvulot Ha’ahrayut [Tort Law – the Limits of Responsibility] 522-532 (2012)).

  1. This Court’s extensive case law shows that, in the past, the test for determining the scope of the duty of disclosure that a physician owes his patient was the “test of the reasonable physician”, similar to the test that generally applies to evaluating conduct or omission by a physician toward his patient. In other words, the question of whether a physician was negligent in refraining from disclosing certain information to the patient is to be determined according to customary medical practice regarding disclosure of that same information. However, over the years, it was decided to reject “the reasonable physician” test, which ignores the patient’s needs and desires and was therefore viewed as unnecessarily paternalistic. In its place, it was decided to emphasize the patient’s needs in particular, and the right to autonomy, and it was thus held that the duty of disclosure includes all the information necessary for the patient to be reasonably able to make an informed decision about treatment or a particular medical procedure. Therefore, the test that currently defines the scope of the duty of disclosure is “the reasonable patient test” (see: CA 3108/91 Ravi v. Veigal [6], 511; CA 434/94 Berman v. Mor Institute for Medical Information, Ltd. [7], 212-214 (1997); the Sidi case, pp. 599-600); CA 8126/07 Estate of Zvi v. Bikur Holim Hospital [8], para. 7 of the opinion of Justice E. Rubinstein; Amnon Karmi, Briut Umishpat [Health and Law] 1116 (2nd ed., 2013); Niv-Yaguda, p. 194).
  2. In passing, I note that in the Kadosh case, Justice Y. Amit proposed to modify slightly the customary test regarding the duty of disclosure, and to evaluate it according to the reasonable patient test in the circumstances of the specific patient as he is seen in the eyes of the reasonable physician, as he noted: “According to the proposed test, the physician owes a duty to disclose to the patient information that the physician knows or should know will be grasped as important by a reasonable person in the patient’s position … in order to make an intelligent decision regarding the proposed treatment” (see: ibid., paras. 50-51 of his opinion). I also think that there is a logical-conceptual challenge in imposing liability upon a physician on grounds of negligence – which in principle evaluates the conduct of the physician according to an objective test – without evaluating his own conduct at all (in addition to the standard that relates to the needs of the patient). In any event, the test proposed by Justice Y. Amit was not adopted by this Court, and the established test for evaluating the scope of the duty of disclosure remains “the reasonable patient”.
  3. Much ink has been spilled discussing the nature and scope of what the reasonable patient needs to know in order to give informed consent. In this context, we can find many, varied opinions in this Court’s case law – some expanding the duty of disclosure and some limiting its scope.

Thus, it has been held that informed consent requires a verbal exchange between the physician and the patient (see: CA 1997/10 Tsoref v. Rosenbaum [9], para. 8); that a physician does not fulfill the duty of disclosure just by having the patient sign a standard form consenting to medical treatment that does not include a detailed explanation that fulfills the required duty of disclosure (see: the Daaka case, p. 549; and cf: CA 10306/08 Shmueli v. Mor Institute for Medical Information, Ltd. [10], para. 18; and that this duty exists even when the patient is generally aware of the possible risks of a particular kind of medical treatment (see: the Estate of Zvi case, para. 10; CA 2600/09 Maccabi Health Services v. N.S. [11], para. 8; CA 7416/12 Meuhedet Health Fund v. A. [12], para. 8 of the dissenting opinion of Deputy President M. Naor (hereinafter: the Meuhedet case)).

It has further been held that the duty of disclosure also includes informing someone of the risks associated with not consenting to the proposed medical procedure (See: the Meuhedet case, para. 25), as well as disclosing the diversity of medical schools of thought (see: CA 6936/09 Yehuda v. Clalit Health Services [13]), and various clinical alternatives (see: CA 2342/09 N.G. v. Clalit Health Services [14], para. 6); and also that the scope of the duty of disclosure expands in cases of innovative, non-urgent (elective) treatment performed in the private system (see: Stendhal case, pp. 15-16); CA 1615/11 Ein Tal Clinic – Ophthalmology Center v. Finkelstein (Albalah) [15], para. 8); and also where the patient in question had in the past used private health services, thus demonstrating having the means to undergo treatment that requires monetary payment (see: the Sidi case, p. 605). Furthermore, it has been held that the duty of disclosure includes providing information about various screening and diagnostic tests – including their overall benefits and their limitations (this matter was left undecided in the Berman case – see ibid., pp. 218-220; and was decided in the Sidi case – see ibid., p. 603).

  1. In addition, it has been held that the duty of disclosure does not mean “flooding” the patient with endless treatment alternatives and remote and minor risks that might result from the medical treatment he faces. Instead, it has been held that the scope of the duty of disclosure should be limited to actual risks that are substantial and relevant under the circumstances, and for which there is a medical indication for their disclosure to the individual patient – balancing the nature of the medical treatment, its necessity and its potential benefit with the probability of its expected risks (see: the Stendhal case, p. 758; CA 718/06 Satkhi v. State of Israel [16], para. 13; CA 7756/07 Gerstel v. Dan [17], para. 22; CA 8693/08 Herman v. Sternberg [18], para. 24; the Meuhedet case, paras. 21-22).

In that context, it was held, inter alia, that once a patient is informed of a necessary course of treatment or test, the physician is not required to repeat himself and try to persuade the patient to undergo it (See: CA 119/05 Halifa v. State of Israel [19], para. 36). Moreover, the scope of the duty of disclosure is more limited when we areconcerned with a patient who has previously undergone the medical procedure in question, and is thus aware of its nature and implications (see: the Herman case), as well as when the information is a matter of public knowledge (see: the Meuhedet case, para. 35).

It has further been held that the duty of disclosure is more limited in regard to screening and diagnostic tests where there is no concrete medical indication of their necessity, when such tests are not precise or unequivocal (see: the Gerstel case, para. 25).

  1. It is also important to note, as background to the discussion on the merits, that in general, we should take care not to expand the duty of disclosure excessively and risk leading to “defensive medicine” – a phenomenon in which “in the area of informed consent … is expressed in providing information to patients and making a comprehensive investment in a large-scale  process of informed consent whose cost outweighs the benefits inherent in such a process. That cannot be justified by medical discretion or the good of the patient, but rather derives from physicians’ fears of legal liability” (see: Nili Karko-Eyal, Doctrinat Hahaskama Midaat B’Hok Zchuyot Haḥole 5756-1996, in Ḥok Zchuyot Haole [The Doctrine of Informed Consent in the Patient’s Rights Law 5756-1996] 151 (2008) (hereinafter: Karko-Eyal, The Doctrine of Informed Consent)). Exposing patients to excessively extensive information can make it hard for them to make a balanced decision, based on meaningful, relevant considerations. Similarly, endless expansion of the scope of the duty of disclosure risks imposing too heavy a burden on physicians, and in any event can make it hard for them to provide efficient and sufficient treatment to all their patients (See: the Satkhi case; the Gerstel case; the Meuhedet case, para. 21; the Sidi case, p. 602; the Kadosh case, para. 27 of Justice Y. Amit’s opinion; Adi Azar and Ilana Nurenburg, Rashlanut Refuit [Medical Malpractice] 251 (2nd ed., 2000); Karko-Eyal, The Doctrine of Informed Consent, pp. 151-153; Yaakov, pp. 649-654; cf: Gilad, pp. 654-656).

 

The Duty to Provide Religious Information or Medical Information Adapted to the Patient’s Religious Characteristics

 

  1. In light of the above, I will now evaluate the first question at the focus of the current appeal, which is essentially divided into two sub-questions: First, within the framework of the duty of disclosure, is the physician required to disclose religious information to a patient regarding requirements and restrictions deriving from religious faith or law that are relevant to the medical treatment? Second, is a physician required to provide a patient with medical information adapted to such requirements and laws?

It should be noted that similar questions have arisen on more than one occasion in trial-court decisions, which have overwhelmingly found that medical advice and treatment should not be adapted to religious characteristics (see: CC (Jerusalem District Court) 19055-12-13 Abu Dahesh v. Clalit Health Services [24], para. 33); CC (Haifa District Court) 195060-07-14 R.A.B. v. Clalit Health Services [25]. para. 20); cf: CC (Tel Aviv District Court) 39999-05-13 P.A. v. Rafaelov [26], paras. 16-17; CC (Haifa District Court) 16010-02-16 A.P. v. Odeh [27], paras. 49-55).

I will already state that I also believe that a physician is not required to provide religious information to a patient, or adapt the medical information provided to a particular patient to that patient’s religious restrictions. However, in cases in which the patient asks, at his own initiative and explicitly, to adapt the medical information to the religious limitations that he communicates to the physician, then and only then is the physician required to do so in accordance with the reasonableness tests that apply to the duty of disclosure.

 

  1. The Obligation to Provide Religious Information Relevant to the Medical Treatment

 

  1. The starting point for the legal discussion of any issue, including the issue of the scope of the duty of disclosure, is the law. Indeed, as noted above, sec. 13(b) of the Patient’s Rights Law establishes that the duty of disclosure for informed consent includes only the duty to provide medical information regarding the patient’s condition, the characteristics of the proposed treatment, chances and risks deriving from such treatment, and only that (see: para. 16, above; also see: Karko-Eyal, The Doctrine of Informed Consent, pp. 339-341; cf: Yaakov, p. 657).

Furthermore, a review of the case law regarding the scope of the duty of disclosure in the context of medical malpractice, as described above, indicates that even according to expansive views of the scope of the duty of disclosure, there is no doubt that the duty relates to medical information, and to information of this type alone, and does not include a duty to provide religious information.

  1. The relevant statutory provisions and the case law thus show that the duty of disclosure imposed on physicians extends to medical information alone, and does not include religious information concerning restrictions or obligations of religious faith.
  2. Furthermore, I believe that this conclusion is also consistent with the purpose of the duty of disclosure, given the professional advantage the physician has over the patient, and because of the confines of the physician’s role. As noted above, the duty of disclosure imposed on physicians derives, inter alia, from the inherent gap in the physician-patient relationship concerning issues of medicine (see para. 14 above and the references there). However, for every other issue, including issues of religious faith, a physician, as a physician, has no advantage over the patient in terms of information or expertise, and it is also not the physician’s role to advise patients on issues that deviate from the area of medicine. In general, patients go to a physician to obtain medical information, to a member of the clergy to obtain religious information, to a psychologist to receive mental health treatment, and to an accountant for financial advice. Accordingly, the duty of disclosure imposed on each is limited to his or her areas of expertise and profession. Thus, the duty of disclosure imposed on a physician is also limited to medical information – the information that the reasonable patient expects to get from a physician.
  3. Justice Y. Amit’s comments in the Meuhedet case are interesting in this context. There he addressed the difficulty of relying on medical advice given by a member of the clergy:

“Does one heed the words of the rabbi or the words of the physician?”[1] In dealing with issues that are unequivocally medical, the question would appear to be rhetorical … even the rabbi, as learned in the Bible and religious law as he may be, is not a physician … someone who goes to a rabbi to get advice-guidance-recommendation regarding issues unequivocally within a profession such as … medicine should know that the rabbi’s words are not on the purely professional plane, and they are mixed with considerations of faith and religious law (see: ibid., para. 58).

 

Justice N. Sohlberg added that “it is appropriate to remember and note the words of Abtalion in Ethics of the Fathers: ‘Sages, be careful with your words …’ (Mishna, Avot 1:11), and in any event, also – rabbis with your advice” (see: ibid., para. 9 of his opinion).

These words, and their inversion, reinforce my above conclusion that physicians do not have a duty to advise their patients regarding religious obligations and restrictions, and that it is also not their role to do so, even when advice of this kind is relevant to the medical treatment. It would also seem preferable, in general, for medical issues to be the responsibility of physicians, and for religious issues to be left to those conversant in them.

 

  1.  

 

  1. We have therefore arrived at the conclusion that a physician is not obligated to provide a patient with religious information relevant to the medical treatment. The next question we should address is whether, in the framework of the duty of disclosure, the physician is required to disclose to a patient medical information about treatment options that are adapted to the patient’s religious restrictions.
  2. I will not conceal the fact that, at first glance, the case before us may give rise to a liberal-moral intuition in favor of ruling that the duty of disclosure imposed on physicians also includes a duty to disclose medical information adapted to each patient’s religious restrictions. That is because, in the case before us, it is argued that the patient’s “Muslim appearance” was apparent, and had the medical information been adapted to her obvious religious restrictions, she would have been able to make an intelligent decision regarding continuing or terminating the pregnancy before 120 days had elapsed from its inception. However, as I will clarify below, once we take into consideration the perspective of tort law, the overall ramifications of such a ruling, and the good of the patients, this initial moral intuition may quickly change.
  3. Thus, in my opinion, even though we are dealing with medical information, it would be inappropriate to expand the scope of the duty of disclosure only in order to adapt the medical information to the patient’s religious characteristics when there is no medical indication for such disclosure. I say this even though it is clear that the patient’s informed decision naturally also comprises considerations deriving from his religion and beliefs (see: CA 355/11 Hadassah Medical Organization v. Meuhedet Clinic [20], para. 32; Niv-Yaguda, p. 194).
  4. I would first note that adapting medical information to religious characteristics involves a certain subjectification of the reasonable patient test. However, this kind of subjectification appears to be inconsistent with the essence of the tort of negligence – which is generally evaluated using objective standards of reasonableness.

Similarly, I believe that there are policy considerations that make it problematic to expand the duty of disclosure to one adapted to religious characteristics as noted above, because adapting medical information to the individual patient’s religious characteristics requires investing substantial effort, thought and time, and would therefore make the duty of disclosure significantly more expensive – expenses that would ultimately be passed on to those needing medical treatment. Additionally, there is a real difficulty in evaluating the tort liability of a physician using a retrospective, subjective test, because such a test is based almost entirely on the testimony of the patient in retrospect regarding his preferences and personal needs at the time of the alleged breach of the duty of disclosure, even though he is unequivocally a party interested in the results of the proceeding. Imposing a burdensome duty of disclosure like this on physicians, while granting patients a structural advantage in the framework of determining liability, as noted, risks creating excessive deterrence which, at the end of the day, would have a boomerang effect on the entire community of patients (see: para. 21, ibid., and also see: the Sidi case, p. 602; the Kadosh case, para. 48A; Azar & Nurenberg, pp. 237-238; , 367-369; Yaakov, pp. 665-666; Jaime Staples King & Benjamin W. Moulton, Rethinking Informed Consent: The Case for Shared Medical Decision-Making, 32 Am. J.L. & Med. 429, 443–445 (2006).

  1. Additionally, refraining from imposing such a duty also derives from the structural difficulty of assuming, as a point of departure, that a physician knows the religious characteristics relevant to the individual patient. As will be explained below, disclosing such information – not in response to a request by the patient – may lead to many mishaps, infringe the patient’s privacy and autonomy, and even harm the medical treatment itself. In this context, we might think of two possibilities for the physician to initiate disclosing such information: the first, through questioning the patient about his religious beliefs; the second, through an initial assumption that the patient belongs to a particular religious group.

 

  1. Questioning the Patient about Religious Beliefs
  1. In my opinion, questioning the patient about issues of faith and religion risks infringing the privacy of the patient and the patient’s right to freedom of religion and freedom from religion. Thus, for example, asking a question about the religious characteristics of a patient who comes for prenatal care risks putting her in a problematic situation regarding the physician and perhaps even regarding herself. In that context, the question might expose the said patient to an ethical or religious conflict that may never have arisen had the physician not asked the patient about her beliefs or the extent of her devotion (see: the Abu Dahesh case, ibid; the R.A.B. case, ibid; the P.A. case, para. 17; and cf: Niv-Yaguda, p. 205).

 

  1. Initial Assumption about the Patient’s Religious Beliefs
  1. Indeed, just as it is inappropriate to question the patient about matters of faith and religion, it is certainly inappropriate to make an assumption about a particular patient’s individual religious characteristics, and  accordingly adapt the medical information provided in the framework of the duty of disclosure. The reason is not just that an assumption of this type is unequivocally paternalistic, but it also risks leading to medical treatment that does not correspond to the patient’s true will and needs. Thus, for example, if a physician assumes that a patient who appears to be religious is not interested in undergoing tests that might justify terminating a pregnancy, he might refrain from providing that patient with medical information about tests of this kind, even though she might indeed be interested in undergoing them. Under these circumstances, it is clear that refraining from disclosing information about relevant medical tests would seriously infringe the patient’s autonomy and her right to decide independently whether to continue the pregnancy.
  2. An illustrative example is the case heard by the State of Tennessee’s Court of Appeals in Piper v. Cumberland Med. Ctr.[29]. That decision addressed the case of a woman whose husband went to the hospital for medical treatment, and his medical file mistakenly listed him as a member of the Jehovah’s Witnesses, who generally avoid blood transfusions. Because of that documentation, the medical staff refrained from performing critical treatments that would have required him to undergo blood transfusions and he died. While the lawsuit was denied for procedural reasons, and the appeal of the judgment was also denied, the case testifies to the serious ramifications that can result from a physician making an assumption about a patient’s religious beliefs.
  3. We may therefore further note that there are many religions and beliefs, and even within them there are various and diverse ideological movements, opinions and approaches as numerous as the sands of the seashore. Furthermore, not everyone who belongs to a particular religion or movement feels bound by all of its obligations and restrictions. Given what was written above, I think it would be inappropriate for a physician to assume that a woman who lives in a Muslim neighborhood would undoubtedly see herself bound by the entirety of Islam’s commandments; would think that a Jewish patient wearing a yarmulke is necessarily religious, traditional, ultra-Orthodox or a member of a particular Hasidic sect, where sometimes each of the above may hold a different position regarding the medical treatment at hand; or would conclude that a woman coming to him for medical treatment wearing a cross around her neck, necessarily adheres to a strict Christian  approach prohibiting termination of a pregnancy (see: the Abu Dahesh case, ibid.; and cf: CA 1326/07 Hammer v. Amit, paras. 52-53).
  4. In conclusion, a physician is not required to adapt the medical information provided in the context of the duty to disclose to his patients’ religious beliefs and restrictions if those arise in the context of an inquiry initiated by the physician or flow from an assumption based on external characteristics that appear to indicate the patient’s religion.
  5. In this context, it is worth emphasizing that sometimes a patient’s failure to inform the physician of his religious beliefs or to initiate a conversation on the subject does not necessarily indicate a lack of information, but rather a conscious choice not to discuss subjects of this kind with the physician. This conscious decision should be respected, and thus it is inappropriate for a physician to initiate a discussion of a patient’s individual religious beliefs, undermining the patient’s wish to avoid doing so (see and compare: CC (Tel Aviv District Court) 5691-12-08 M.N. v. State of Israel – Ministry of Health [28].

 

The Patient’s Request to Receive Adapted Medical Information

  1. Having said that, when a patient asks a physician, at his own initiative, to receive medical information adapted to his religious beliefs – then and only then would the physician be required to disclose information of this type to that patient (see: the R.A.B. case, ibid.). That is because when a patient makes a request of his physician, at his own initiative, the question changes the standard relationship between the physician and the patient and creates a different standard of disclosure, based on the patient’s expectation of receiving medical information conforming to his request from the physician. In such a case, in response to the patient’s questions, the physician has a duty to disclose all the individual information that is relevant, commensurate with that request, in accordance with the test of reasonableness and the rest of the tests of the tort of negligence.
  2. Therefore, if the patient wishes to receive medical information adapted to his religious characteristics – that is, a right to a disclosure that deviates from the customary disclosure – then he is the one who bears the burden of asking the physician, at his initiative, for medical information adapted as noted (See: Karmi, pp. 1179-1181; and cf: Niv-Yaguda, pp. 203-204; similarly, on the nature of the burden as a requirement of any conduct “for the purpose of obtaining or continuing to obtain a legal advantage”, and on the distinction between burden and duty, see: Gad Tedeschi, Hanetel Uba’ayat Ha’ones Vihasikul [The Burden and the Problem of Coercion and Frustration], 16 Mishpatim 335, 335-337 and 339-340 (5746)).
  3. And note: Even when a patient asks his physician for information adapted to his individual religious characteristics, which are communicated directly by the patient, the physician is not obligated to disclose religious information to him, but rather medical information adapted as noted. That is because religious information is completely outside the area of the physician’s expertise. Therefore, in his role as physician, it has no place in the framework of the duty of disclosure.

 

On the Subjectification of the Duty of Disclosure in U.S. Law

 

  1. Before we apply the aforementioned to the case at hand, I will dedicate a few words to the position of American law on the issue before us.

In American law, each and every state has discretion to determine the standard for a physician’s duty of disclosure, and in general one can divide the customary standards on the issue into three groups. In some of the states, the duty of disclosure is evaluated in light of customary medical practice and commensurate with the scope and nature of the information that a reasonable physician would disclose to his patients. In some states, the duty of disclosure is evaluated according to the standard of the reasonable patient, similar to the test used in Israel. A few states have established a truly subjective test that defines the scope of the duty of disclosure by reference to the wishes and needs of a particular, individual patient. It is indeed true, as noted, that the subjective test has been rejected in the law of most American states, but many states have internalized certain subjective characteristics even within the objective test, such that the reasonable patient is evaluated as if he is standing in the shoes of the individual patient (see: William J. McNichols, Informed Consent Liability in a "Material Information" Jurisdiction: What Does the Future Portend?, 48 Okla. L. Rev. 711, 716–717 (1995); Elysa Gordon, Multiculturalism in Medical Decisionmaking: The Notion of Informed Waiver, 23 Fordham Urb. L.J. 1321, 1335–1336 (1996); and see also: King & Moulton, p. 445).

  1. One of the leading cases concerning the test of the reasonable patient is the D.C. Circuit’s decision in Canterbury v. Spence [30], which held, inter alia, as follows:

 

In our view, the patient's right of self-decision shapes the boundaries of the duty to reveal. That right can be effectively exercised only if the patient possesses enough information to enable an intelligent choice. The scope of the physician's communications to the patient, then, must be measured by the patient's need, and that need is the information material to the decision. Thus the test for determining whether a particular peril must be divulged is its materiality to the patient's decision: all risks potentially affecting the decision must be unmasked (emphasis added—Y.W.).

 

It was further held that shaping the duty of disclosure to the individual needs of each and every patient risks imposing an unduly heavy burden on physicians and is inconsistent with the nature of the tort of negligence, which is generally evaluated through objective standards of reasonableness. Therefore, it was held that physicians are required to disclose to their patients the information that the reasonable person in the patient’s position would need in order to make an informed, intelligent decision commensurate with the information that the physician knows or should know about the patient before him (see ibid., p. 787; similar to the test proposed by Justice Y. Amit in the Kadosh case, as cited above in paragraph 18):

 

                   From these considerations we derive the breadth of the disclosure of risks legally to be required. The scope of the standard is not subjective as to either the physician or the patient; it remains objective with due regard for the patient's informational needs and with suitable leeway for the physician's situation. In broad outline, we agree that “[a] risk is thus material when a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy” (emphasis added – Y.W.).

 

  1. In order for the physician to adapt the relevant information to the patient before him – whether according to the subjective test or according to the test of the reasonable person in the patient’s position – he must, of course, know his patient. Thus, American law also recognizes the physician’s duty to question his patients (Duty to Inquire) (see: Robert Gatter, Informed Consent Law and the Forgotten Duty of Physician Inquiry, 31 Loy. U. Chi. L.J. 557, 567 (2000)). However, this duty is limited to questions regarding medical information related to the patient, as Gatter explained in writing:

          The majority of courts require a physician to ascertain only a patient's medical condition, proposed treatment, or sometimes both, in order to adequately determine what must be disclosed to that patient. Accordingly, the law generally permits physicians to remain ignorant of a patient's non-medical characteristics despite the relevance of those characteristics in providing useful treatment information to each patient. So, for example, under the majority approach, a physician may disclose the same information to every patient with colon cancer even if one patient's primary goal is to participate in his daughter's wedding rather than to maximize his chances for a cure. The physician is permitted to assume that the patient's goal is to maximize his chances of cure, and, therefore, the physician satisfies the duty of disclosure without explaining the likelihood that any of the patient's treatment choices will achieve the patient's goal"(ibid., p. 568; emphasis added—Y.W.).

 

  1. The scope of the duty of inquiry described above inherently affects the duty of disclosure that follows such inquiry. Thus, American courts have held more than once that a physician is not required to adapt the medical information he discloses to a patient to individual non-medical characteristics. That is due to the fact that, from the outset, he is not required to ask about such information in the framework of the inquiry and questioning of the patient (see: ibid., pp. 558-559 and 568-574; and compare with the Alabama Supreme Court decision in Fain v. Smith [31].
  2. It is also interesting to note that one can indeed find a number of decisions in which U.S. courts also recognized the physician’s duty to disclose to his patient information adapted to his non-medical characteristics or needs. However, these decisions – most or all of them – dealt with situations in which the physician in fact knew about his patient’s unique non-medical characteristics, and despite that knowledge, refrained from giving them expression in the context of disclosing the relevant information. As Professor Gatter wrote in the article cited above:

          These cases… hold that, in determining what treatment information to disclose to a patient, a physician must account for every patient characteristic about which the physician has actual knowledge regardless of whether the physician was required to have discovered those characteristics. Accordingly, these cases do not redefine the scope of the physician's duty to discover, or even inquire about, non-medical characteristics of patients (ibid., p. 577; emphasis added —Y.W.).

 

  1. We thus learn that, according to U.S. law, the duty of disclosure does not generally imply a duty to question the patient about individual, non-medical characteristics and needs, inquire about them, or assume their existence based on various external factors. Accordingly, the dominant American approach is that the duty of disclosure does not include adapting the medical information provided to individual, non-medical characteristics, as noted, unless the physician actually knows about such characteristics, desires or preferences.

 

From the General to the Specific

 

  1. We will now return to the case before us. Applying all of the above to the circumstances of the case at hand leads to the conclusion that all the Appellants’ arguments regarding breach of the duty of disclosure should be rejected.
  2. , Professor Zlotogora did not breach the duty of disclosure by not informing the Appellants of the 120-day limit, because it is religious information that is not part of the duty of disclosure (see: paras. 23-26 ibid.).
  3. , Dr. Zakrian, as well, did not breach his duty of disclosure by not providing the Appellants with medical information adapted to the 120-day limit, which is the information regarding the possibility of undergoing a FISH test. That is because the Appellants did not ask Dr. Zakrian to disclose information that would allow them to make a decision about continuing the pregnancy before 120 days elapsed from conception, and thus we are dealing with a standard physician-patient relationship in which the physician is not required to disclose adapted information, as noted.

Furthermore, as extensively detailed above, since the Appellants did not raise the issue of the 120-day limit with Dr. Zakrian, he was not allowed to ask them, at his own initiative, if they would be interested in medical information that would facilitate a decision about continuing the pregnancy during the 120 days, and it would have been inappropriate for him to assume that the Appellants wanted adapted information, given their Muslim appearance or their place of residence.

  1. In this context, I would emphasize that I am not addressing whether it was appropriate at that time (2007) to inform every pregnant woman about the FISH test as an inherent part of the duty to disclose medical information, unrelated to the above-mentioned religious affiliation, as that question did not arise in the opinion of the expert (Dr. Peter Yaakobi) presented by the Appellants, and in any event it was not proven by them. In essence, an examination of Dr. Yaakobi’s opinion shows that he did not claim that there was a medical indication that required informing the Appellants about the possibility of performing a FISH test, but rather relied only on the existence of a religious indication which, as noted above, does not create a duty of disclosure.

 

The Duty of Disclosure in light of the Stern Precedent

 

  1. What is left, therefore, is to address the last question that this appeal raises: Should this Court’s judgment in the Stern case be applied to this case? As noted, the Appellants argue in this regard that even if it were to be held that the duty of disclosure, per se, does not include disclosing religious information or medical information adapted to religious restrictions or preferences, it should still be held that in this case, because Prof. Zlotogora customarily informed his Muslim patients about the 120-day limit, and Dr. Zakrian customarily informed all his patients about the possibility of undergoing a FISH test, their conduct should be evaluated according to a higher-than-usual standard, pursuant to the Stern rule.
  2. The judgment in the Stern case held that once a medical institution adopts practices and procedures that are more meticulous than the customary, reasonable practice, then it has shown that it has the information and data necessary to operate more strictly and cautiously. Thus, it was held that the standard of reasonable behavior that this institution is required to meet should be “elevated”, essentially by attributing the specific medical institution’s unique knowledge and expertise to the test of the reasonable medical institution, according to which the conduct of the said institution would be evaluated.
  3. At the outset, I will note that despite the logic of the Stern rule, it is not immune to criticism. That is because, inter alia, the subjectification that it introduces to the standard of reasonable conduct does not, in general, appropriately comport with the objective standards of the tort of negligence, and even risks  “punishing” physicians who operate with extra caution, thus creating a negative incentive to adopt innovative practices or skills (see and compare: Gilad, pp. 494-495; Restatement (Third) of Torts: Liability for Physical and Emotional Harm, § 12, Comment a). I will add that, in my opinion, that precedent may actually be relevant for the rules of reliance, and not the tort of negligence.

In any event, I think that it would be inappropriate to apply the Stern rule to our case, as I will explain.

  1. First, as noted above, the crux of the Stern rule is raising the standard of conduct required of the reasonable physician or medical institution because of the special knowledge or skill and greater caution of a specific physician or medical institution. However, as noted, the duty of disclosure is evaluated from the viewpoint of the reasonable patient, and not according to the test of the reasonable physician. In any event, it would appear to be inappropriate to evaluate the unique skill and conduct of a specific physician (including a specific medical institution) in the context of the discussion of the duty of disclosure.
  2. , and this is the main point, I believe that the Stern rule does not lead to the conclusion that a physician who customarily provides his patients religious information or medical information adapted to their individual religious characteristics is negligent in refraining to do so in a given case, and that is for reasons of legal policy, which I addressed at length above (see: the Stern case, p. 955; see also the comment of Justice E. Rubinstein in CA 5604/94 Hemed v. State of Israel [22], 518-519) (dissenting, joined by Justice J. Turkel)). Thus, including religious information or medical information adapted to individual religious characteristics in the context of the duty of disclosure (not in response to the patient’s request) is not only outside the physician’s expertise and professional area, but it also raises, as noted above, significant difficulties. Therefore, it is clear that it would be inappropriate to perpetuate such a practice through the Stern rule, and to make it a binding standard of conduct.
  3. In light of the above, I believe that the District Court was correct in ruling that it would be inappropriate to raise the standard of conduct required of Prof. Zlotogora and Dr. Zakrian to the point of obligating them to disclose information to patients about restrictions based in religion, or medical information adapted to individual religious characteristics, just because of their alleged custom of doing so.

 

Result

  1. Given the result I have reached, there is no need to rule on the Appellants’ argument regarding Prof. Zlotogora’s inadequate medical notes, because even if they were to prove that he refrained from informing them about the 120-day limit, there would be no flaw in doing so, and perhaps the opposite is true.

 

  1. Finally, we should also reject the Appellants’ claim that the amniocentesis was performed at too late a stage, and therefore its findings were received after 120 days had elapsed from conception. By that, the Appellants argue medical malpractice by omission, and therefore the relevant test for evaluating their arguments is the test of the reasonable physician in the circumstances of the case. In that context, the customary medical practice is of great significance (see: Azar & Nurenberg, pp. 320-321; Gilad, pp. 503-504). However, the Appellants did not prove that it was customary practice at the relevant time to perform an amniocentesis at an earlier stage. I will also note that the expert opinion submitted on their behalf stated that amniocentesis results are generally received “within 2-3 weeks, as in the case in question” (see ibid., p. 6; emphasis added — Y.W.). It is worth adding that the Appellant was informed of the importance of an amniocentesis as early as the first stages of the pregnancy, and despite that fact, she did not communicate to the medical staff any desire to hurry and undergo it as soon as possible. The District Court therefore correctly held that there is no basis for ruling that the Respondents should have “urged the plaintiff to undergo the necessary tests, primary among them the amniocentesis, in order to remain within the religious restrictions, when she herself did not express any desire or request related to that issue” (see para. 46 of the judgment).

 

Afterward

  1. After writing the above, I received the opinion of my colleague, Justice N. Hendel. In that opinion, he argues, inter alia, that there are situations in which a physician should provide his patients with religious information that he possesses (see para. 2 of his opinion; emphasis added –Y.W.). I cannot agree.

I cannot deny that my colleague’s words are touching, and relate to that same moral-liberal intuition that I addressed in para. 28 above. However, despite this initial intuition, as I explained in detail above, I believe that not only is disclosing religious information not part of a physician’s duty in his role as physician, but also that disclosing such information is completely outside the bounds of his role and expertise, and he should avoid doing so (see para. 25 above).

  1. This also hold true, in my opinion, for the examples brought by my colleague in his opinion. Thus, I am of the opinion that it is inappropriate for a physician to inform a patient about the stage at which she is permitted to terminate a pregnancy according to the dictates of her religion, even if she informed him that she is a devout Muslim. That is both because, as noted, a physician’s job does not include providing religious information, and also because the fact that a particular patient is Muslim does not in any way indicate the specific theological tradition to which she adheres, her level of devotion, or the views of the specific religious leader on whom she relies. As explained extensively above, assumptions of this kind – that “paint” all Muslim patients, or all Christian or Jewish patients with a uniform religious “color” – are inappropriate, and even risk creating substantial mishaps (see paras. 33-37 above).
  2. I would also say in regard to my colleague’s second examples that the determination that a physician would do well to inform a patient of the possibility of talking to rabbis or other religious officials whose opinions may  differ from those of the patient’s rabbi, or would do well to talk to the rabbi advising the patient, clearly deviates from the role of the physician, and might be interpreted as offending the patient’s sensibilities.

 

  •  
  1.  In light of the all the above, I propose to my colleagues that we deny the appeal without issuing an order for costs.

 

 

Justice D. Mintz:

I concur with the detailed opinion of my colleague Justice Willner. I will only add a small contribution of my own regarding providing “religious information” to a patient.

  1. In my view, the attending physician should completely avoid providing “religious information” or medical information adapted to the patient’s religious characteristics, unless asked to do so. The reason, and perhaps the only reason, is the physician’s lack of knowledge regarding those same religious characteristics, which unquestionably deviate from his professional, medical expertise. That is true even if the physician has acquired some degree of broad knowledge of religious law as a result of his clinical experience over time. In our case, the Appellants believe that the physician should know the Muslim law regarding the period in which a pregnancy may be terminated. It is possible that every gynecologist knows this kind of information, but it is also possible, and even probable, that it is not the case. However, even if the information is indeed common among gynecologists, the range of religious-law questions concerning medicine in the various religions is so broad that it would be inappropriate to expect physicians, whose area of expertise is medicine, to possess it.
  2. If only as the briefest example of the range of questions that arise at the interface between Jewish religious law and the various fields of medicine, one can point to the numerous articles on halakha published in the journal Tehumin—an annual devoted to the areas of Torah, Society and State. This journal contains articles in the field of medical ethics; gynecology, obstetrics and fertility; paternity and maternity; illnesses, geriatrics and disabilities; transplants; medical devices and para-medical roles, and more (see, e.g., in the field of gynecology, on the narrow question before us regarding terminating a pregnancy: Rabbi Moshe Feinstein, Hapala Malachutit Linachrit [Termination of Pregnancy for a Gentile], 5 Tehumin 64; Rabbi Dr. Aharon Lichtenstein, Hapalot Malachutiot – Hebetei Halacha [Termination of Pregnancy – The Halakhic View], 21 Tehumin 93; Rabbi Abraham Stav, Keitzad Livatzea Hapala Malachutit [How to Terminate a Pregnancy], 29 Tehumin 352; Rabbi Abraham Stav, Shlavim B’herayon L’inyan Isur Hapala [Stages of Pregnancy in regard to the Prohibition upon Termination], 31 Tehumin 53; Rabbi Moshe Tsuriel, Hapalat Ubar She’uvchena Etzlo Mahala Kasha [Aborting a Fetus Diagnosed with a Serious Illness], 25 Tehumin 64; Rabbi Yoel and Dr. Hana Katan, Ubar Pagum – Ivchun Mukdam Um’niyat Herayon [A Fetal Defect– Early Diagnosis and Contraception], 21 Tehumin 107; Rabbi Nahum Elazar Rabinovitch, Zihui Hitpatchut Shel Valad B’emtzaut Ultra-Sound [Identifying the Development of the Fetus by Ultrasound], 30 Tehumin 120; also see articles published on the website of Herzog College – Daat Jewish Studies and Humanities – Asia – Jewish Law and Medicine: www.daat.ac.il/he-il/refua and the Halakhic Medical Encyclopedia – Schlesinger Institute: www.medethics.org.il/articles-main, and there are many more).
  3. It is therefore impossible to require a physician to provide any “religious information” related to the patient’s religious characteristics. To paraphrase the Court’s words in CA 7416/12 Meuhedet Health Clinic v. A. [12], which my colleague cited, just as the patient should look to the physician for his answers on matters of medicine, if he so wishes, the patient should look to a religious-law expert of his religion  for answers on matters of religious law, if he so wishes.

 

Justice N. Hendel:

I concur with the main elements of the comprehensive opinion of my colleague Justice Y. Willner. Precisely because of the matters of principle raised by the issue, I will briefly address four comments, regarding which this is not the appropriate occasion or framework to expand.

1.         Religion and medicine. There are various aspects to the tension that has developed between the two. Here, we examine the scientific perspective, or to be more precise, the providing of religious information in the context of medical treatment. My colleague Justice Willner explained why a physician must provide medical information and not religious information, even if the latter may be relevant. As noted, I agree with her. To be sure, in order to understand the issue we must present the character and scope of the physician’s duty to provide medical information to the patient.

The scope of the duty of disclosure that a physician owes his patient is evaluated by reference to the question of whether the patient received all the information that a person reasonably needs to decide intelligently whether to consent to the treatment offered (and see CA 1303/09 Kadosh v. Bikur Holim Hospital [4], paras. 2-3 of Deputy President E. Rivlin’s opinion (hereinafter: the Kadosh case); CA 4960/04 Sidi v. General Federation Medical Fund [3], 599-600). This test is called “the reasonable patient” test. But the name of the test can be misleading. The welcome innovation in the name of the test is meant to clarify that the emphasis is on the patient rather than the physician. However, the test does not replace the physician with the patient, but rather the reasonable physician versus the reasonable patient. That is a different move.

The test of the reasonable physician appears to be appropriate for evaluating the conduct of the physician. The test places an emphasis on the physician and his duty to act according to the standard of reasonableness that is at the heart of the element of negligent conduct as found in the negligence provision – para. 35 of the Civil Wrongs Ordinance [New Version]. The patient is the one who benefits from setting standards that may be strict for the physician. The latter must exercise a duty of care toward the former. The problem with the test of the reasonable physician is that the patient may find himself outside of the equation, even if that is not the intention. Such an approach does not comport with modern conceptions in medicine, including medical ethics. According to these conceptions, the patient is not a passive victim of his condition. The case law correctly rejected the paternalistic approach to the patient (and see: the Kadosh case, paras. 10-11 of Deputy President E. Rivlin’s opinion). As I will immediately explain, “the reasonable patient” does not provide a real response to these modern conceptions. Reasonableness is not required of the patient in the way it is required of the physician – we are not dealing with the patient’s duty, but rather with the patient’s rights.

It is in this context that the information gap between the physician and the patient arises. The former is the expert, and the latter is the layperson. But because the patient has a right to dignity and autonomy, he must be given the possibility to choose (on the interwoven relationship of human dignity, individual autonomy and freedom of choice from the point of view of Jewish law, as well, see CA 9936/07 Ben David v. Entebbi [23], para. 12 of my opinion). The Patient’s Rights Law, 5756-1996 (hereinafter: the Law) was intended to recognize the status of the patient in the treatment he receives. The focus is on para. 13 of the Law, which establishes: “In order to obtain informed consent, the clinician shall supply the patient medical information to a reasonable extent, such as to enable the patient to decide whether to agree to the treatment proposed […]” (emphasis added – N.H.). Note that the requirement is for informed consent. That is a very complex issue. The patient cannot become an expert during the course of his treatment, but his lack of knowledge does not nullify his right to choose, which includes certain kinds of information. In that sense, the physician is not just the expert in the treatment but also the patient’s advisor. According to the text of the law, as well, the reasonableness must be found in the information provided the patient. In this sense, it would be more accurate to call the test, “the reasonable information test” and not “the reasonable patient test”. Of course, the question of what constitutes the reasonable information that should be given to the patient is one that is also based on policy considerations. The boundaries in either direction are important. However, in my view, the test emphasizes the information that is provided to the patient, and not just the patient’s expectations. The reason is that the patient’s expectation, before he receives information from the physician, can be misleading, because he has no idea what to expect. The purpose of the aforementioned para. 13 is to create informed consent – meaning a voluntary, independent choice (and see: para. 13(c)). That is the goal, and that is the condition for providing medical treatment. Reasonableness is, therefore, expressed in the information provided to the patient – both the content of the information, as well as the way it is transmitted.

Emphasizing the rules for providing information would appear to help in deciding hard cases. Of course, the name is not what determines the substance. The physician must act reasonably. There is no such requirement of the patient in the context of medical malpractice cases. The patient’s conduct may have ramifications for determining the scope of the physician’s liability, but that is not the focus. In contrast, the duty to provide the patient with the necessary information, reasonably, is imposed on the physician, and it derives from the patient’s right to know, to choose and to consent in an informed manner.

2.         The distinction between providing medical as opposed to religious information is an appropriate distinction from the point of view of legal policy considerations, which my colleague Justice Willner addressed. The physician is not a religious official, and he is not expected to know the ins and outs of the various religious laws, and to inform his patients about them. I will not deny that in certain cases, the physician presenting religious positions is unwelcome and may even be harmful. Just as partial information in medicine may confuse, that is also true of religious information. However, in examining the issue, there may be situations in which, in my view, the physician would do well to provide his patients with religious information that he possesses, even indirectly, and I say that without establishing an obligation to do so.

I will give two examples, but there are more. The goal is not to impose new obligations on the physician, but rather to create a dialogue. Just as legal realism made its home in the legal world, such is also the case for medical realism. Refraining from imposing a legal obligation on the physician to act in a certain way is not the same thing as prohibiting acting in that way. Take for example a situation in which a patient informs a physician that she is a devout Muslim. The physician is well aware that, in general, according to her religion, a pregnancy cannot be terminated after 120 days from conception have elapsed. At the beginning of the pregnancy, the physician recommends performing a certain test that can reveal various syndromes in the fetus, which may lead the patient to decide that she wants to terminate the pregnancy. The patient, in response to the physician’s recommendation, says that she is interested in these tests, but she will do them at a later stage of the pregnancy, for example five months into it. Only then will she consider the options at her disposal, commensurate with her religion. In such a case, is the physician obligated to remain silent, without mentioning that he knows that according to the patient’s religion, terminating the pregnancy would not be permissible at that stage? I think the answer is likely to be no. Note well: The intention is not for the physician to provide the patient with recommendations on issues of her faith. The only meaning of this comment is that when a physician is well aware of certain religious information that is relevant to a patient according to the patient’s declaration, the physician can recommend that the patient talk to an appropriate religious figure, to the extent that the issue constitutes a consideration for the patient. That should be done while emphasizing that the physician is not an expert in the field. Doing so can allow the patient to make an intelligent decision and prevent irreparable future harm. I would emphasize that this is not professional advice, and the physician should offer the appropriate caveats. But in some situations, we should not rule out providing information as noted, even if there is no obligation to do so. Doing so may even have benefits.

I will present another example. Let us assume that a physician believes that there is an essential, even life-saving, operation for a particular patient, but the patient makes it clear that he does not want to undergo the treatment because he spoke with a religious official, a rabbi, for example, who told him that the treatment is not necessary for his health, and that he will recover without it. Notice that in this example, the religious official takes a medical position, and the patient accords it weight because of the official’s spiritual role. In order to illustrate the example, we will add a description. A thirty-year old man was bitten by a dog, and it becomes apparent that the dog was rabid. The physician expresses the vital need to receive a vaccination quickly. The patient informs the physician that he consulted with his rabbi, who told him that there is no need for it, he should not receive the vaccination, and no danger awaits him. Again, without creating obligations for the physician, he would seem to do well to explain to the patient again that the treatment is essential, and even tell him that there is a possibility of talking with additional rabbis. In the appropriate circumstances, he might even offer to talk to the rabbi himself, if necessary. It should be clear that I am not making a determination about the appropriate course of action in this example, which is not theoretical, but I think that having the physician remain detached from any statement related to the religious element is not necessarily the best approach. It also does not reflect the needs of medical realism, and it may be contrary to the D.N.A. of a devoted physician.

These examples were not presented in order to rule on them, but rather to present the reality with which physicians must grapple, multi-faceted as it is. These are ethical issues that should be recognized. The general rule is as my colleague Justice Willner presented. It is the job of the physician to provide medical information and not religious information. The duty of a physician is to provide the first kind of information. However, in my view, reality is not always binary – not everything is a question of obligation or nothing. The argument about the difficulty of setting boundaries for the religious information that the physician provides requires great thought and caution, but on the other hand, it need not completely negate the possibility of seeking the appropriate balance. We should not forget that the slippery-slope argument can itself be a kind of slippery slope. It is therefore important to enrich the discourse and allow the physician a margin of discretion in dealing with his complex role, both from a medical and a human perspective.

3.         This comment concerns the precedent set in CA 3056/99 Stern v. Haim Sheba Medical Center [1] (hereinafter also: the Stern rule). That case held that when a medical institution adopts an advanced medical practice, the law may hold that institution to a higher standard of caution, even if it is not required of other medical institutions. Similar to the approach of my colleague Justice Willner, I believe that it would be inappropriate to apply that precedent to the case at hand. In my opinion, that is primarily because the rule addresses situations in which a hospital chose an advanced medical practice, whereas informing a patient about religious restrictions does not address an issue of medicine. In other words, we are not dealing with an “advanced” practice. Having said that, I would make two comments on the issue. My colleague noted that the Stern rule treats of the test of the reasonable physician, while the duty of disclosure is evaluated from the point of view of the reasonable patient. As noted, I think that the emphasis should be on reasonable information. In any event, as far as I understand, the Stern rule relates to the standard of conduct expected of an institution that has adopted an advanced practice, whether the standard is evaluated according to the test of the reasonable physician or according to the test of the reasonable patient. That is to say that for purposes of applying the Stern rule, we should not distinguish between negligence in breaching the duty of disclosure and negligence in the actual medical treatment.  An additional question is why should there be a distinction between a physician and an institution in applying the Stern rule when the advanced standard is adopted consistently and continuously. In other words, it is appropriate to ask whether it is proper to differentiate between the logic that applies to a medical institution and the logic that applies to a specific physician. However, given that this question would not change the final outcome, I will leave it undecided.

4.         I read the opinion of Justice D. Mintz, and without disagreeing with him, I would clarify the following point. My colleague concluded by saying that in matters of medicine, one hears the physician, and in matters of religion, one hears the religious arbiter or rabbi. However, according to Jewish law, even this issue is not necessarily characterized by perfect order that divides the decisions neatly into different, hermetically separated drawers – a drawer for the rabbi and a drawer for the physician. Take, for example, the important religious commandment about saving a life. Maimonides, who was himself a physician, expressed it well in his religious ruling regarding the laws of the Sabbath:

Like all the other commandments, the Sabbath is overridden by danger to life. Hence, we execute all of the needs of an ill person in mortal danger according to the word of an expert physician in that place on the Sabbath. When there is a doubt whether there is a need to desecrate the Sabbath for him or there is not a need, and likewise if [one] physician said to desecrate the Sabbath for him but another physician said he does not need [it], we desecrate the Sabbath. For [even] a doubt about [danger to] life overrides the Sabbath (Maimonides, Mishneh Torah, Sabbath 2:1; emphasis added).

And later:

When these things are done […] scholars and sages of Israel are to perform them […] One must not put off the desecration of the Sabbath in treating a seriously ill patient, as it is written: “If a man obeys them he shall live by them” (Leviticus 18:5) (ibid., 2:3).

 

Therefore, according to Maimonides, the physician is the one who decides whether or not the issue is life-threatening, which allows overriding the Sabbath, and the religious actor must follow his instructions. Thus, Maimonides does not place the physician completely outside the sphere of Jewish law. This rule expresses a holistic view of the role of the physician, who is first and foremost committed to determine the patient’s medical condition in order to preserve the sanctity of his life.

This and more will await at the appropriate opportunity.

 

                                                                       

 

Decided in accordance with the opinion of Justice Y. Willner.

Given this day, 5 Av 5789 (August 6, 2019)

 

 

[1] Ed: The quote is a paraphrase of a Talmudic question, “Does one heed the words of the rabbi or the words of the student?” (see, e.g., TB Bava Kama 56a).

Pardes Hanna-Karkur Local Council v. Ministry of Health

Case/docket number: 
HCJ 2233/20
Date Decided: 
Thursday, March 26, 2020
Decision Type: 
Original
Abstract: 

HCJ 2233/20 Pardes Hanna-Karkur Local Council v. Ministry of Health; HCJ 2255/20 Ezra Manor v. Ministry of Health challenged the decision of the Ministry of Health to convert several departments in the Shoham Government Geriatric Center in Pardes Hanna-Karkur for the treatment of moderate to severe coronavirus patients. The Court (per Justice A. Stein, Justice G. Karra and Justice N. Sohlberg concurring) denied both petitions.

 

In HCJ 2233/20, the Court criticized the “not in my backyard” attitude of the Local Council, and held that “Shoham is a hospital that belongs to the State, and it may decide what goes on between its walls to the best of its professional discretion in order to treat patients that it – the State, and not the Pardes Hanna-Karkur Local Council – decides to hospitalize. That authority is granted the State by virtue of it general prerogative as an executive authority, by virtue of the provisions of the Public Health Ordinance in regard to the establishment and administration of hospital and other medical institutions in a state of emergency, by virtue of the provisions of the Interpretation Law concerning auxiliary powers… as well as by virtue of its being the owner of the hospital under discussion”.

 

In denying the petition in HCJ 2255/20, the Court recognized the Petitioners’ distress, but held that the State had struck a proper balance between the violation of the rights of the Petitioners and the expected harm to the general public. Citing Justice Vogelman’s decision in LAA 2199/20, the Court held that “in making this decision, the State exercised professional discretion, and its decision is certainly not disproportionate”

Voting Justices: 
Primary Author
majority opinion
Non-writer
majority opinion
Non-writer
majority opinion
Full text of the opinion: 

HCJ 2233/20

HCJ 2255/20

 

Petitioner in HCJ 2233/20:                 Pardes Hanna-Karkur Local Council

Petitioners in HCJ 2255/20:               Ezra Manor and 6 others

                                                                                                                                                                                                                                                v.

 

Respondent in HCJ 2233/20:              Ministry of Health

Respondent in HCJ 2255/20:              Shoham Medical Center

 

Attorney for the Petitioner in

HCJ 2233/20:                                      Jubran Jubran, Adv.

Attorney for the Petitioners in

HCJ 2255/20:                                      Yael Havassy Aharoni, Adv.

Attorneys for the Respondents:          Udi Eitan, Adv., Michal Hassin, Adv.

 

Petition for an order nisi and an interim order

Israeli Supreme Court cases cited:

[1]       LAA 2199/20 Peshe Brook v. Ministry of Health [1] (March 24, 2020)

[2]       HCJ 703/19 M.B.I. Pharma v. Ministry of Health (Aug. 26, 2019)

 

 

The Supreme Court sitting as High Court of Justice

Before: Justice N. Sohlberg, Justice G. Karra, Justice A. Stein

 

Judgment

 

Justice A. Stein:

1.         The urgent petitions before us challenge the decision of the Ministry of Health (hereinafter: the State) to convert the nursing care departments, the subcritical geriatric department, and two  dementia care departments in the Shoham Government Geriatric Center in Pardes Hanna-Karkur (hereinafter: Shoham) for the future hospitalization of moderate to severe coronavirus patients who are to receive dedicated treatment under conditions that will prevent transmission. According to the State’s plan and the decision that is the subject of the petitions, this conversion (hereinafter: the conversion process or the process) involves transferring the patients in those departments (hereinafter: the Shoham residents or the residents) to other nursing care frameworks: the Hadar Karkur Nursing Care Hospital in Pardes Hanna, and the Tender Loving Care Nursing Home in Hadera, not far from Pardes Hanna. In order to prevent this process, the Petitioners ask that we issue an order nisi and an interim order that will temporarily, and then permanently, halt it.

Arguments of the Parties

2.         According to the Petitioner in HCJ 2232/20, the Pardes-Hanna-Karkur Local Council (hereinafter: the Local Council or the Council), the conversion process is disproportionate in terms of the totality of interests that it affects; the decision in this regard was made without consulting the Council, and without consideration for its implications for the general public of the area that it serves; and in breach of the license and purpose of Shoham as a geriatric hospital, as opposed to a general hospital or other specialized hospital.

3.         The Petitioners in HCJ 2255/20 are seven residents of Shoham who are meant to move to the different nursing care facilities mentioned above. These Petitioners are represented by their appointed guardians and attorneys appointed by the guardians. They argue that transferring them – against their will and without sufficient preparation – to other nursing homes will harm them to the point of even endangering their lives. The Petitioners explain and argue in this regard that the transfer from one nursing care facility to another severely impacts the patients. These consequences are related, they argue, to the problems confronting an elderly patient in adapting psychologically, emotionally, and in terms of general functioning, which are documented in medical research and are well-known in the field of geriatrics. It is further argued that the patients and their families were not given prior notice so that they could prepare for the process. On the legal plane, the Petitioners argue that the conversion process that they challenge in their petition violates their basic right to emotional and physical integrity, and their right to autonomy – rights that they argue must be respected even in a state of emergency. In addition, the Petitioners argue that the process is being carried out without lawful authority, and that it suffers from extreme unreasonableness that goes to the core of the matter.

4.         As opposed to this, the State argues thar the conversion process, which is intended for immediate implementation, is a necessary evil in the current state of emergency. Our current situation nearly 1500 people have contracted the coronavirus, and over 100 are in a moderate to severe condition, while five have died from the illness. These numbers may grow to national-disaster proportions (as part of the worldwide pandemic). The conversion process forms part of the State of Israel’s fight against the coronavirus, and is part of a long list of emergency measures adopted to prevent further transmission of the virus and its spread among the residents of the state. This is a national effort of the first order, in which the State must ensure that it has a large number of hospital beds for moderate to severe coronavirus patients. The conversion process is meant to provide the State and coronavirus patients with 128 hospital beds, and thus its necessity. The State involved the families of the Shoham residents in the conversion process, and its attorney again declared before us that these residents will be transferred to appropriate frameworks, not far from Shoham, for continued, appropriate care for their needs in a sensitive and respectful manner. As for the authority to implement the conversion process, the State argues that it holds such authority at all times, and certainly in times of emergency, by virtue of the general prerogative of the executive branch, and by virtue of the laws treating of emergency powers and the attendant auxiliary powers. The State also argues that Shoham is, first and foremost, a hospital – as its name implies – that is permitted to provide any medical services as the Ministry of Health – i.e., the State – may decide. Such services can include treatment of coronavirus patients, in addition to or instead of geriatric nursing care, if the State so decides – and the State has so decided.

 

Discussion and Decision

The Local Council’s Petition

5.         I am of the opinion that the petition should be denied, as so I will recommend to my colleagues.

6.         We are all in the same boat, and the coronavirus does not recognize municipal boundaries. It would appear that this simple, important truth was lost upon the Pardes Hanna-Karkur Local Council. The effort to stop the spread of the virus is the effort of us all, and if we do not support it by increasing the number of places for the hospitalization and treatment of those afflicted with the coronavirus, the virus may spread to every corner of the country, including Pardes Hanna-Karkur. Therefore, the “not in my backyard” attitude expressed between the lines of the Local Council’s petition is incorrect and inappropriate to the difficult situation in which we now find ourselves (and in general).

7.         The State – acting through the Ministry of Health and many other execution branches – is responsible for the fight against the coronavirus. Shoham is a hospital that belongs to the State, and it may decide what goes on between its walls to the best of its professional discretion in order to treat patients that it – the State, and not the Pardes Hanna-Karkur Local Council – decides to hospitalize. That authority is granted the State by virtue of it general prerogative as an executive authority, by virtue of the provisions of the Public Health Ordinance in regard to the establishment and administration of hospital and other medical institutions in a state of emergency, by virtue of the provisions of the Interpretation Law concerning auxiliary powers (see, respectively: sec. 32 of Basic Law: The Government; sec. 20, and specifically sec. 20(i) of the Public Health Ordinance, 1940; as well as sec. 17 of the Interpretation Law, 5741-1981), as well as by virtue of its being the owner of the hospital under discussion.

8.         As opposed to that, the Local Council has no authority to intervene in what goes on in government hospitals, or the manner of their administration by the State – even when those hospitals are in their jurisdiction. The authorities of the Council, which are only indirectly related to our issue, are set out in secs. 142, 249(29) and 242 of the Municipalities Ordinance [New Version], and do not extend to the area of government hospitals. The state health institutions are, in any case, not required to hear the opinion of local councils in making decisions in regard to government hospitals – such a hearing is exclusively a voluntary matter that is sometimes desirable and sometimes entirely unnecessary.

9.         As for the Local Council’s arguments in regard to the well-being of the Shoham residents, with all due respect, those residents – some of whom filed a petition in HCJ 2255/20 – have shown that they know how to speak for themselves by means of their guardians and their lawyers. I will address the arguments of the residents, which should not be taken lightly, in the following section. Before doing so, I will finish this section with the necessary conclusion that the Local Council’s petition is groundless, and it were better had it not been filed in the first place.

 

The Petition of the Residents of Shoham

10.       The distress of the elderly population that requires geriatric supervision and care is real. Their distress should not be taken lightly, and we are far from doing so.

11.       However, that distress is only one of the distressing matters that the State must address in these difficult days. The daily existential dangers and distress that we face due to the coronavirus pandemic are also real. In the case before us, the State made a decision that balances the residents’ right to care and nursing, which is an important part of their right to welfare, against providing for the existential medical needs of those afflicted by the coronavirus, and the need to stop the spread of the virus as quickly as possible. In that framework, the State was forced to decide to inflict relatively minor harm to the residents of Shoham, who will be transferred – unavoidably at short notice – to other nursing frameworks, where they will receive appropriate care, in order to prevent much more severe harm, inter alia, the spread of a dangerous disease, harm to the health of the state’s residents, and even death.

12.       Clearly, this decision presents a great hardship for the evacuated residents and their families, who are concerned for their well-being. However, none of the residents tried to prove to us – and in any case, did not prove – that his health may severely and irreversibly be harmed as a result of his immediate transfer to another institution. The State’s conversion process is, no doubt, no simple matter. However, it is far from being a “tragic choice” of the sort that civilized states are required to make in time of crisis (see: Guido Calabrese & Philip Bobbit, Tragic Choices (1978)), for which we should be thankful. In making this decision, the State exercised professional discretion, and its decision is certainly not disproportionate (see, in a similar matter, the opinion of Justice U. Vogelman in LAA 2199/20 Peshe Brook v. Ministry of Health [1], para. 6).

13.       The residents further argue that the conversion process, and the manner in which it will be implemented, are not consistent with the directives of the Ministry of Health in terms of the stages of preparation of the government hospitals for the projections of the spread of the coronavirus. This argument lacks substance. The internal work procedures of a governmental agency are not hard-and-fast rules that appear in statutes or regulations, and that must be observed strictly. They certainly do not restrict the authorities granted to the State, to which I referred in addressing the Local Council’s petition. This is also the case in regard to the argument that challenges the validity of the projections of the spread of the virus upon which the State relied. Such projected scenarios lie at the core of the professional discretion of the Ministry of Health, in which we do not ordinarily interfere (see, eg., HCJ 703/19 M.B.I. Pharma v. Ministry of Health [2], para. 19). Beyond what is required, I would note that a low probability of great harm justifies adopting expensive, and even harsh preventative action.

14.       Having reached this point, and seeing that there was no substantial or procedural defect in the conversion process, we have no alternative but to deny the petition of the Shoham residents. At the same time, we wish the Petitioners, and all the other Shoham residents, good health and long life, in the hope that our ship – in which we all sail together – will soon reach safe haven.

15.       In conclusion, the both petitions are denied, with no order for costs.

            Given this 1st day of Nissan 5780 (March 26, 2020).

                                               

 

Brook v. Ministry of Health

Case/docket number: 
LAA 2199/20
Date Decided: 
Tuesday, March 24, 2020
Decision Type: 
Appellate
Abstract: 

Peshe Brook v. Ministry of Health sought leave to appeal a decision by the Administrative Affairs Court denying a request for an interim order that would prevent the transfer of the Applicants to alternative facilities while their petition against the Ministry’s decision remained pending. The request was denied in a decision by Justice U. Vogelman for lack of a sufficient cause for intervention in the lower court’s decision. Although the Court recognized the difficulty that the transfer posed for the Applicants, Justice Vogelman held that “the balance of interests tilts in favor of the Ministry of Health, which seeks to use the Center’s 360 available beds for the hospitalization of corona patients …”. 

Voting Justices: 
Primary Author
majority opinion
Full text of the opinion: 

LAA 2199/20

 

Applicants:                             Peshe Brook and 48 others

 

                                                            v.

 

Respondent:                            Ministry of Health

 

Attorneys for the

Petitioners:                  Yossi Chessakov, Adv., Rafel Shushan, Adv.

 

Attorneys for the

Respondent:                Sigal Avnon, Adv.

 

 

 

Leave for appeal on the decision of the Administrative Affairs Court, Mercaz-Lod (Judge O. Shwartz) in AP 239763-03-20 of March 22, 2020

 

 

Decision

Before Justice U. Vogelman

 

 

1.         The matter before me is a request for leave to appeal the decision of the Administrative Affairs Court, Mercaz-Lod (Judge O. Shwartz) of March 22, 2020, denying a request for an interim order by the Applicants, elderly persons residing in the Malben Geriatric Hospital in Rishon Lezion (hereinafter: the Geriatric Center or Center), submitted with their petition against the decision of the Ministry of Health (hereinafter: the Ministry) to remove the residents of the Center in order to convert it into a center for coronavirus patients. In their request for an interim order, the Applicants argue that uprooting them from their familiar environment, at their age in in their state of health, will inflict severe harm, and therefore, their removal should be prevented until a decision is rendered on their petition.

2.         In weighing the likelihood of the petition’s success, the court noted that the Applicants did not challenge the Ministry’s authority to order the conversion of the Center, but rather the manner of its exercise of discretion. The court found that from that perspective, the likelihood that those arguments might succeed were not great, inter alia, in view of the exceptional circumstances of the spread of the coronavirus, which require speedy preparations and immediate actions for the allocation of hospitalization options in addition to those of the general hospitals. As for the balance of interests, the Applicants presented an expert opinion (hereinafter: Dr. Seidenberg’s opinion), which point out the reasonable fear that transferring the Applicants, in their state of nursing care, will lead to a deterioration of their condition, and found that their transfer to alternative geriatric facilities was unquestionably undesirable. However, the court addressed the current, vital need to use the Center’s buildings to hospitalize persons who had contracted the coronavirus, and the importance of using the Center’s buildings, which comprise 360 beds (of which only 68 are currently used for nursing-care patients). It was further noted that the affidavit submitted by the Director of the Geriatrics Division of the Ministry of Health, Dr. Irit Laxer (hereinafter: Dr. Laxer) provides details of the Ministry’s plan for evacuating the Applicants, which includes an alternative facility that is prepared for the orderly intake of each of the Applicants, along with measures for achieving a solution acceptable to their families. In view of the said cumulative considerations, the request for an interim order was denied.

3.         This leads to the request before me, in which the Applicants argue that they and their families were not afforded the right to be heard, and that they were promised that those who so desired would be permitted to remain in the Center. In essence, the Applicants argue that the court erred in regard to the authority, inasmuch as they cannot be transferred under an “emergency procedure”, but rather, only in accordance with the provisions of sec. 20(2)(i) of the Public Health Ordinance, 1940 (hereinafter: the Public Health Ordinance). It is further argued, in this regard, that the Ministry’s decision to place persons suffering from the coronavirus in the Center violates the terms of the lease for the land upon which it is built. The Applicants further argue that Ministry representatives are not working with their families, as claimed, and no weight is being given to their preferences. They claim that the opinion they submitted should be given utmost weight in regard to the difficulties involved in their transfer, given their medical state, and that there are less harmful alternatives for the hospitalization of coronavirus patients, such as hotels.

4.         In its response, submitted on March 23, 2020, in accordance with my decision of the previous day (but due to a problem in the Court secretariat, it was delivered to me only in the late hours of the night), the Ministry argues that no cause was shown for intervention in the Administrative Affairs Court’s decision. It is argued that the claims in regard to the lease from the Rishon Lezion Municipality (the Municipality) are not the focus of this proceeding, and in any case, it was decided in another proceeding, to which the Municipality was a party, that there are no grounds for preventing the use of the Center’s buildings for the hospitalization of coronavirus patients, even under the assumption that the Municipality’s arguments are justified (CC (Magistrates Rishin Lezion) 42014-07-19 Rishon Lezion Municipality v. State of Israel (March 12, 2020)). It was further argued that the State holds authority, by virtue of its auxiliary authority, to move patients from one institution under its administration to another. The State argues that the decision was the result of relevant, professional considerations, in view of the vital need to use the Center in the framework of the preparations for addressing the State’s current health crisis. It was emphasized that it is Dr. Laxer’s professional opinion that the immediate evacuation of the residents of the Geriatric Center is critically necessary, and that they cannot be permitted to remain even in some of the buildings after the Center is populated with coronavirus patients. In this regard, it was noted that places like the Geriatric Center are intended for a coronavirus population that is different from that being sent to hotels, which primarily comprises young, independent patients. As opposed to that, the State intends to use the Center and its 360 beds for the hospitalization of older coronavirus patients with preexisting conditions, and coronavirus patients with mild symptoms who have a prognosis of increased severity, and who require close supervision and more intense treatment.

5.         In its response, the State noted the detailed plan that had been prepared for the placement of each of the Applicants (except for five, four of whom are no longer living, according to the Respondents data, and one who is not listed as a patient at the Center), the principle parts of which were outlined in a table appended to the response. It was argued that the plan provides a solution for every resident of the Center, including those who are not parties to this proceeding, and that the new placements meet the Ministry of Health’s standards, and some are of a standard higher than that of the Center. The State explained that the admitting facilities are prepared to receive the expected patients, and that the required coordination of their transfer (including the transfer of medical records, and strict observance of the Ministry of Health directives for their transfer to the new placement) are carried our in advance between representatives of the Ministry, the Center, and the admitting facility. It was further noted that individual discussions were held with the Applicants’ families in order to arrive at an agreed solution, that the families were given the opportunity to choose the facility to which their relative would be transferred, and that the Ministry continues to examine additional solutions that might benefit the Applicants so as to ease their adjustment. It was also explained that even after the patient’s transfer, transfer to any place the family might choose would be considered, to the extent possible, as is customary.

            Parenthetically, I would note that the parties did not present arguments in regard to the Court’s jurisdiction ratione materiae to address the petition under sec. 5(1) and Appendix I to the Administrative Affairs Courts Law, 5760-2000. Given that, and the urgency of the subject matter, I saw no reason to address that matter in this decision.

6.         After reviewing the request for leave to appeal and the response to it, I have arrived at the conclusion that the request should be denied for lack of a cause for intervention in the decision of the Administrative Affairs Court. As was explained in detail above, in its response, the State explained the efforts that had been invested in finding appropriate solutions for the Applicants, and the detailed preparations for the transfer process. I was also presented with a table that includes a concrete solution for each of them (along with a declaration that such a solution also exists for residents who are not party to this proceeding). Indeed, as explained in Dr. Seidenberg’s opinion, it cannot be denied that transferring the Applicants presents great difficulties for them, and for their health conditions, which are not the best. The Administrative Affairs Court was also aware of this, as explained in its decision. But under the circumstances, and in view of the spread of the coronavirus in the state, there is a public need of the first order to prepare for the hospitalization of people suffering from the virus, whose number is sadly growing every day. To that end, the Ministry seeks to evacuate the Applicants, 44 among 68 residents of the Center, at this time, while maintaining a dialogue with their family members in order to arrive at an optimal solution. Therefore, despite the problems that were described, which I do not take lightly,  the balance of interests tilts in favor of the Ministry of Health, which seeks to use the Center’s 360 available beds for the hospitalization of corona patients who require a higher level of supervision than that required for patients sent to hotels or other such places. For this last reason, the Applicants’ argument that there are less harmful alternatives cannot be accepted. I would further note in regard to the authority to make the decision that is the subject of the petition, the Applicants pointed to sec. 20(2)(i) of the Public Health Ordinance, which authorizes the Director General of the Ministry to order, in the circumstances set out therein, the seizure of buildings or land for the purpose of setting up temporary hospitals (under the conditions established therein), and argued that the conditions for its application had not been met. Without deciding upon those arguments, I am of the opinion that those arguments would not suffice to change the result of the balance that the Administrative Affairs Court struck among the various, relevant considerations.

            The request is therefore denied. Under the circumstances, there is no order for costs.

            Given this day, 28 Adar 5780 (March 24, 2020).

 

 

Israel Medical Association v. Knesset

Case/docket number: 
HCJ 5304/15
Date Decided: 
Sunday, September 11, 2016
Decision Type: 
Original
Abstract: 

Petitions to strike down the Prisons Ordinance (Amendment No. 48) Law, 5775-2015 (hereinafter: the Law), which addresses “preventing harm to the health of a prisoner on a hunger strike”, and permits, in some instances, coercive medical treatment of hunger striking prisoners despite their refusal. The Petitions addressed, inter alia, the constitutionality of section 19N(e) of the Law, which instructs that in addressing a request for authorizing medical treatment, the court shall take into account “considerations of risk to human life or a real risk of serious harm to national security, to the extent that evidence to this effect is presented to the court”. The Petitioners were the Israel Medical Association and human rights organizations.

 

The High Court of Justice (per Deputy President E. Rubinstein, and Justices M. Mazuz and N. Sohlberg) denied the Petitions for the following reasons:

 

The Law meets the constitutional tests. Ultimately the Law comprises an element of saving a life and prioritizing the principle of the sanctity of life. It is where it begins and where it ends. This is reinforced by the fact that the person concerned is in the custody of the State, which is duty-bound to provide him with proper medical treatment.

 

The Deputy President addressed the different components of the constitutionality tests and the Limitations Clause in detail, and reached the conclusion that the Law, including section 19N(e), passes the constitutionality tests by delicately balancing the sanctity of life, the State’s responsibility toward prisoners in its custody, and national security,  against the right of the individual to dignity, including autonomy and freedom of expression. This is the case given the graduated procedure established by the Law, which includes several medical, judicial and legal mechanisms of supervision.

 

Inter alia, it was held that the dominant purpose of the Law is protecting the life of a hunger striking prisoner, subject to the exceptions designed to ensure protecting the dignity of the prisoner, with close supervision and monitoring by medical and judicial bodies. This is an indisputably proper purpose. The secondary purpose is security based. Its concern is preventing risk to the lives of others aside from the hunger striking prisoner, or preventing serious harm to national security. This purpose is expressed in section 19N(e) of the Law, under which the court may consider non-medical considerations in making its decision whether to permit involuntary medical treatment. Had the security purpose been an exclusive or primary purpose, there may have been doubt as to whether it would be proper for the purpose of permitting forcible feeding. However, this secondary purpose, too, is largely grounded upon the principle of the sanctity of the life of the innocent who may be harmed as a result of the consequences of a hunger strike by prisoners or detainees. Given that the former is the dominant purpose and that the latter is secondary to it, Justice Rubinstein held that both purposes are proper.

 

It was also noted, inter alia, that the arrangement in section 15 of the Patient Rights Law, addressing a situation of a patient who refuses to accept treatment, does not sufficiently and fully respond to situations of hunger strikes in general, and to such strikes by prisoners or detainees in particular, in terms of the State’s responsibility for them, the complexities of autonomous will in cases of hunger strikes by prisoners who are willing to die, or in regard to such cases where the group circumstances of those on strike prevents them from ending the strike, as well as in terms of the consequences of the hunger strike for national security. Therefore, this is a specific, supplementary arrangement for the purpose of addressing situations where the arrangement established in the Patient Rights Law is to no avail.

 

In terms of the proportionality stricto sensu test, it was found that the amendment provides a graduated, balanced arrangement that seeks to minimally infringe the prisoner’s autonomy while protecting his life through mechanisms of close supervision and monitoring – both medical and legal – of the proceedings and its employment as a last resort. This arrangement represents a proper relationship between the benefit which may derive from the Law and the potential harm to constitutional rights due to its implementation.

 

In this context, it was noted that the procedure commences with the medical opinion of the treating physician. The request is to be submitted by the Prisons Commissioner with the approval of the Attorney General or an appointee on his behalf – as a last resort meant to prevent risk to the life of the of a prisoner on hunger strike, or the risk of severe, irreversible disability – and only after the procedural process has been exhausted. As a general rule, the ethics committee will provide its opinion on the matter, the President of the District Court or his Deputy will determine the request, and the decision is subject to appeal to the Supreme Court. The treatment provided shall be the minimal treatment required. The caregiver is not required to provide the treatment permitted by the court. The Law presents a structured, organized arrangement that involves – alongside doctors – very high levels of the legal and judicial system, and is constructed in strict stages, and as a last resort. It was also emphasized that before the court may be approached, the treating physician must make “significant efforts” to persuade the prisoner to give his consent to treatment. Thus, the doctor must explain the legal process and its possible implications to the prisoner. The court must hear the prisoner, and it is authorized to hold the hearing on the request at the hospital. Even when permission for involuntary treatment is granted, the caregiver must again attempt to persuade the prisoner to consent to treatment, and as noted, the treatment to be provided must be the minimal required, and must be provided in a manner that would ensure the greatest protection of the prisoner’s dignity, while preventing, to the extent possible, causing pain or suffering.

 

Section 19N(e), which focuses on the security purpose, also meets constitutional requirements. Moreover, it must be employed extremely sparingly and in extreme cases, given the proper evidentiary foundation. The security consideration itself cannot justify commencing proceedings under the Law, and certainly cannot itself enable authorization for treating a prisoner against his will. The security considerations according to the Law can be considered only when the treating physician has determined that the prisoner’s medical condition is extremely severe and that there is real risk to his life, or that he will suffer severe, irreversible disability, and for the purpose of saving his life, which is the main purpose of the Law. In any event, the treatment that is provided in practice, if and to the extent it is provided, in accordance with the physician’s discretion, will be a result of medical considerations alone. Implementing section 19N(e) must be extremely sparing and  exceptional, where the State provides evidence pointing to a near certainty of serious harm to security, and all this following the medical journey, which is primary.

 

Justice M. Mazuz concurred in the result as to the constitutionality of the Law. He reiterated, inter alia, that the employment of the procedure was designed for extreme cases where other means were not successful, and it is restricted to the necessary minimum required in order to save the life of a prisoner at mortal risk due to a hunger strike, or to prevent severe, irreversible harm. Nevertheless, Justice Mazuz expressed concern that too great a weight might be given to considerations of security and public order at the expense of the medical considerations and the right to autonomy. Therefore, he proposed establishing guidelines and restrictions for the implementation of the provisions in section 19N(e), which would address the security consideration, in the form of a “procedural separation” between the examination of the medical and  security considerations.

 

Pursuant to the opinion of Justice Mazuz, the Deputy President clarified that the best approach is one of first things first – first the medical issue, and  a discussion of the security issue only thereafter. In order not to tie the hands of the trial court completely, the Deputy President suggested a formula whereby the court would begin by examining the medical issue as the basis of determining the matter, while the security issue – to the extent it may be necessary – would be left to be addressed last.

 

Justice Sohlberg concurred in the opinion of the Deputy President and added, inter alia, a few comments on the question of the proper place and role of the security considerations under section 19N(e) of the amendment. 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

 

 

HCJ 5304/15

                                                                                                                        HCJ 5441/15

HCJ 5994/15

 

           

 

Petitioner in HCJ 5304/15:        Israel Medical Association

 

 

 

Petitioners in HCJ 5441/15:    1. Al Mezan Center for Human Rights

2. Yusuf Al-Siddiq Organization for Prisoner Support

 

 

 

Petitioners in HCJ 5994/15:    1. Physicians for Human Rights Israel

                                                2. The Public Committee Against Torture in Israel

3. HaMoked: Center for the Defence of the Individual founded by Dr. Lotte Salzberger

                                                4. Yesh Din Volunteers for Human Rights

 

 

                                                            v.

 

Respondents in HCJ 5304/15

and HCJ 5441/15:                               1. Israel Knesset

                                                            2. Minister of Public Security

                                                            3. Commissioner of the Israel Prison Service

                                                            4. Attorney General

                                                            5. General Security Service

 

 

Respondent 3 in HCJ 5441/15:           General Security Service

 

Respondent in HCJ 5994/15:              State of Israel

                       

                                   

 

 

Attorneys for the Petitioners in HCJ 5304/15: Orna Lin, Adv., Tamar Winter-Kamar, Adv.,Yael Stamati, Adv.,  Moria Glick, Adv., Tamar Halevi, Adv.

Attorneys for the Petitioners in HCJ 5441/15: Durgam Saif, Adv., Omar Khamaisi, Adv.,

Attorney for the Petitioners in HCJ 5994/15: Tamir Blank, Adv.

Attorney for Respondent 1 in HCJ 5304/15 and HCJ 5441/15: Gur Bligh, Adv.

Attorney for Petitioners 2-4 Petitioners in HCJ 5304/15, Respondent 3 in HCJ 5541/15, and the Respondent in HCJ 5994/15: Areen Sfadi-Attila, Adv.

 

 

Dates of sessions:        4th Tishrey 5776 (Sep. 17, 2015), 12th Adar 5776 (Feb. 21, 2016)

 

The Supreme Court sitting as a High Court of Justice

 

Petitions for an order nisi

 

Before:            Deputy President E. Rubinstein, Justice N. Sohlberg, Justice M. Mazuz

 

Abstract

 

 

Petitions to strike down the Prisons Ordinance (Amendment No. 48) Law, 5775-2015 (hereinafter: the Law), which addresses “preventing harm to the health of a prisoner on a hunger strike”, and permits, in some instances, coercive medical treatment of hunger striking prisoners despite their refusal. The Petitions addressed, inter alia, the constitutionality of section 19N(e) of the Law, which instructs that in addressing a request for authorizing medical treatment, the court shall take into account “considerations of risk to human life or a real risk of serious harm to national security, to the extent that evidence to this effect is presented to the court”. The Petitioners were the Israel Medical Association and human rights organizations.

 

The High Court of Justice (per Deputy President E. Rubinstein, and Justices M. Mazuz and N. Sohlberg) denied the Petitions for the following reasons:

 

The Law meets the constitutional tests. Ultimately the Law comprises an element of saving a life and prioritizing the principle of the sanctity of life. It is where it begins and where it ends. This is reinforced by the fact that the person concerned is in the custody of the State, which is duty-bound to provide him with proper medical treatment.

 

The Deputy President addressed the different components of the constitutionality tests and the Limitations Clause in detail, and reached the conclusion that the Law, including section 19N(e), passes the constitutionality tests by delicately balancing the sanctity of life, the State’s responsibility toward prisoners in its custody, and national security,  against the right of the individual to dignity, including autonomy and freedom of expression. This is the case given the graduated procedure established by the Law, which includes several medical, judicial and legal mechanisms of supervision.

 

Inter alia, it was held that the dominant purpose of the Law is protecting the life of a hunger striking prisoner, subject to the exceptions designed to ensure protecting the dignity of the prisoner, with close supervision and monitoring by medical and judicial bodies. This is an indisputably proper purpose. The secondary purpose is security based. Its concern is preventing risk to the lives of others aside from the hunger striking prisoner, or preventing serious harm to national security. This purpose is expressed in section 19N(e) of the Law, under which the court may consider non-medical considerations in making its decision whether to permit involuntary medical treatment. Had the security purpose been an exclusive or primary purpose, there may have been doubt as to whether it would be proper for the purpose of permitting forcible feeding. However, this secondary purpose, too, is largely grounded upon the principle of the sanctity of the life of the innocent who may be harmed as a result of the consequences of a hunger strike by prisoners or detainees. Given that the former is the dominant purpose and that the latter is secondary to it, Justice Rubinstein held that both purposes are proper.

 

It was also noted, inter alia, that the arrangement in section 15 of the Patient Rights Law, addressing a situation of a patient who refuses to accept treatment, does not sufficiently and fully respond to situations of hunger strikes in general, and to such strikes by prisoners or detainees in particular, in terms of the State’s responsibility for them, the complexities of autonomous will in cases of hunger strikes by prisoners who are willing to die, or in regard to such cases where the group circumstances of those on strike prevents them from ending the strike, as well as in terms of the consequences of the hunger strike for national security. Therefore, this is a specific, supplementary arrangement for the purpose of addressing situations where the arrangement established in the Patient Rights Law is to no avail.

 

In terms of the proportionality stricto sensu test, it was found that the amendment provides a graduated, balanced arrangement that seeks to minimally infringe the prisoner’s autonomy while protecting his life through mechanisms of close supervision and monitoring – both medical and legal – of the proceedings and its employment as a last resort. This arrangement represents a proper relationship between the benefit which may derive from the Law and the potential harm to constitutional rights due to its implementation.

 

In this context, it was noted that the procedure commences with the medical opinion of the treating physician. The request is to be submitted by the Prisons Commissioner with the approval of the Attorney General or an appointee on his behalf – as a last resort meant to prevent risk to the life of the of a prisoner on hunger strike, or the risk of severe, irreversible disability – and only after the procedural process has been exhausted. As a general rule, the ethics committee will provide its opinion on the matter, the President of the District Court or his Deputy will determine the request, and the decision is subject to appeal to the Supreme Court. The treatment provided shall be the minimal treatment required. The caregiver is not required to provide the treatment permitted by the court. The Law presents a structured, organized arrangement that involves – alongside doctors – very high levels of the legal and judicial system, and is constructed in strict stages, and as a last resort. It was also emphasized that before the court may be approached, the treating physician must make “significant efforts” to persuade the prisoner to give his consent to treatment. Thus, the doctor must explain the legal process and its possible implications to the prisoner. The court must hear the prisoner, and it is authorized to hold the hearing on the request at the hospital. Even when permission for involuntary treatment is granted, the caregiver must again attempt to persuade the prisoner to consent to treatment, and as noted, the treatment to be provided must be the minimal required, and must be provided in a manner that would ensure the greatest protection of the prisoner’s dignity, while preventing, to the extent possible, causing pain or suffering.

 

Section 19N(e), which focuses on the security purpose, also meets constitutional requirements. Moreover, it must be employed extremely sparingly and in extreme cases, given the proper evidentiary foundation. The security consideration itself cannot justify commencing proceedings under the Law, and certainly cannot itself enable authorization for treating a prisoner against his will. The security considerations according to the Law can be considered only when the treating physician has determined that the prisoner’s medical condition is extremely severe and that there is real risk to his life, or that he will suffer severe, irreversible disability, and for the purpose of saving his life, which is the main purpose of the Law. In any event, the treatment that is provided in practice, if and to the extent it is provided, in accordance with the physician’s discretion, will be a result of medical considerations alone. Implementing section 19N(e) must be extremely sparing and  exceptional, where the State provides evidence pointing to a near certainty of serious harm to security, and all this following the medical journey, which is primary.

 

Justice M. Mazuz concurred in the result as to the constitutionality of the Law. He reiterated, inter alia, that the employment of the procedure was designed for extreme cases where other means were not successful, and it is restricted to the necessary minimum required in order to save the life of a prisoner at mortal risk due to a hunger strike, or to prevent severe, irreversible harm. Nevertheless, Justice Mazuz expressed concern that too great a weight might be given to considerations of security and public order at the expense of the medical considerations and the right to autonomy. Therefore, he proposed establishing guidelines and restrictions for the implementation of the provisions in section 19N(e), which would address the security consideration, in the form of a “procedural separation” between the examination of the medical and  security considerations.

 

Pursuant to the opinion of Justice Mazuz, the Deputy President clarified that the best approach is one of first things first – first the medical issue, and  a discussion of the security issue only thereafter. In order not to tie the hands of the trial court completely, the Deputy President suggested a formula whereby the court would begin by examining the medical issue as the basis of determining the matter, while the security issue – to the extent it may be necessary – would be left to be addressed last.

 

Justice Sohlberg concurred in the opinion of the Deputy President and added, inter alia, a few comments on the question of the proper place and role of the security considerations under section 19N(e) of the amendment.

 

 

Judgment

 

Deputy President A. Rubinstein:

 

1.         Before us are Petitions to strike down the Prisons Ordinance (Amendment No. 48) Law, 5775-2015 (hereinafter: “the Law”), which concerns “preventing harm to the health of a hunger striking prisoner”, and which, under certain circumstances, permits involuntary medical care for hunger striking prisoners despite their refusal. The Petitions address, inter alia, the constitutionality of sec. 19N(e) of the Law, which provides that in addressing a request to permit medical care, the court will take account of “considerations regarding concern for human life, or a real concern for serious harm to national security, to the extent that evidence to this effect is presented to the court.”

 

Background

 

2.         The right to informed consent for medical care was recognized over the years as one of a person’s fundamental rights under the right to liberty. Therefore, as a general rule, one may refuse medical treatment, including feeding (CA 506/88 Sheffer v.  State of Israel, IsrSC 48(1) 87 (1993) [English: http://versa.cardozo.yu.edu/opinions/yael-shefer-minor-her-mother-and-na...).

 

3.         The Patient Rights Law, 5756-1996 (hereinafter: the Patient Rights Law) was designed to “establish the rights of every person who requests medical care or who is in receipt of medical care, and to protect his dignity and privacy” (sec. 1 of the Law). According to sec. 13(a) of the Patient Rights Law: “No medical care shall be given unless and until the patient has given his informed consent to it, in accordance with the provisions of this chapter”, and this subject to the exceptions listed in sec. 15 of the Patient Rights Law, which permit – under certain circumstances – forcible feeding. Ethics committees that were established under the Patient Rights Law operate within the hospitals (see sec. 24 of the Patient Rights Law, as well as the Patient Rights (Manner of Appointments, Terms of Office, and Operating Procedures of Ethics Committees) Regulations, 5757-1996). Their role is to permit a caregiver to provide treatment to a patient against the patient’s will, under certain circumstances. The ethics committee is chaired by a jurist eligible to be appointed as a district court judge, and comprises two specialist physicians from different areas of medical specialization, a social worker or a psychologist, and a public representative or a clergyman. Under the Patient Rights (Amendment No. 6) Law, 5774-2014, the composition of the ethics committee was expanded to include a certified nurse. It was determined that where the opinions of the committee are evenly split for purposes of a request under sec. 15(2) of the Patient Rights Law, the committee’s decision should be viewed as a decision not to permit the caregiver to provide the patient with care against his will.

 

4.         A hunger strike is a means of protest by which the hunger striker seeks to achieve a defined goal. Hunger strikes by prisoners occur from time to time in Israel. In recent years, this phenomenon has been recurrent among security prisoners and detainees who are members of terrorist organizations – be it as a group or as individuals. It occurs, albeit on a smaller scale, among non-security prisoners and detainees, as well. Although a hunger strike is not itself a medical problem or an illness, its continuation inevitably leads to severe, at times irreversible, medical problems for the hunger striker, and may even lead to death if medical care not be given. There is some scientific uncertainty in the medical community as to the medical aspects of a hunger strike, as well as to its treatment. There are no scientific tools or scientific experience that may serve as a foundation for medical opinions as to the life expectancy of a hunger striker. As the explanatory notes to the Bill reveal, a prisoner is at real risk of death after 55-75 days of absolute hunger strike. The Bill also notes that there is no evidence from around the world of a full, ongoing hunger strike of 75 days after which the hunger striker remained alive (see the Explanatory Notes to the Bill, Government Bills (5774-2014) 763, 870). By their nature, hunger strikes require medical monitoring and treatment.

 

5.         Prior to the Law’s enactment, the law did not include provisions regulating the possibility of the involuntary artificial feeding of hunger striking prisoners, and consequently, Israeli law did not define the terms “hunger strike” of “hunger striker”. Until the Law was enacted, and in practice, even after its enactment, as we will see in the examples below, treatment for hunger striking prisoners or detainees was provided in accordance with the Patient Rights Law, similarly to medical treatment for patients who, being informed, refuse necessary treatment, including hunger strikers who are not prisoners. However, in situations of extended hunger strikes, particularly when they are partial, there is medical difficulty in determining the point in time where the hunger striker enters a state of “severe danger,” which is a prerequisite to convening the ethics committee under sec. 15(2) of the Patient Rights Law. In an attempt to confront the above challenge, in April 2012, in the midst of a wave of hunger strikes by prisoners and administrative detainees, Guidelines for the Medical Treatment of a Hunger Striker (Including Detainees and Prisoners) were published by the Ministry of Health. The Guidelines set a rule of thumb according to which after 26 to 30 days of hunger strike, full or partial, there may be risk to the life of the hunger striker, or a risk of severe, irreversible impairment.

 

6.         The Patient Rights Law includes a possibility of coercive medical treatment of a person only after approval by the ethics committee. In recent years, ethics committees convened according to the Patient Rights Law have considered requests to treat hunger striking prisoners. In all these cases, the striking prisoners consented to medical care without coercion. Ultimately, not a single prisoner died due to a hunger strike. This was the result of a dialogue between the members of the ethics committee and the hunger strikers, which was based on the close trust relationship between the caregiver and the patient. On February 24, 2013, Dr. Michael Dor, then the head of the General Medicine Department in the Ministry of Health, published a directive to the administrators of general hospitals, according to which security prisoners who have been on a hunger strike for over 28 days were to be admitted even if they objected to receiving medical treatment, and that a prisoner on a hunger strike for less than 28 days was to be admitted if his medical condition posed a life-threatening risk. As will be explained, several cases were recently brought before this Court (HCJ 5580/15 Alan v. General Security Service (Aug. 15, 2015) (hereinafter: the Alan case); HCJ 452/16 Al-Qiq v. IDF Commander in Judea and Samaria (Feb. 2, 16) (hereinafter: the Al-Qiq case)). They all concluded, one way or another, with an agreed arrangement that ended the hunger strike (also see HCJ 3267/12 Halahla v.  Military Commander of Judea and Samaria, para. 25 (2012)).

 

7.         Before we address the details of the Law, and in order to clarify the issue, we will explain what forcible feeding is. It is a medical treatment wherein nutrition and fluids are artificially introduced into the patient’s body against his will. Such feeding includes a range of possible medical procedures, beginning with intravenously providing fluids and supplements, performing blood tests for evaluation, and providing medications. In extreme cases, which we will address below, nutrition or fluids are introduced into the body of a hunger striker through a nasogastric tube inserted through the nose and throat into the stomach, or through a tube inserted through an opening in the abdomen and into the stomach.

 

The Course of the Law’s Enactment

 

8.         Following a mass hunger strike among security prisoners and administrative detainees in 2012, which lasted – in part – for an extended period of time, and to the point that it posed real risk to the health and life of strikers, an inter-ministerial taskforce – headed by the Deputy Attorney General (Criminal), and with the participation of representatives of the Minister of Justice, the Ministry of Public Security, the Ministry of Health, the Prisons Service and the Security Service – was convened in order to establish appropriate guidelines to address the phenomenon. The team also included the Deputy Attorney General (Special Projects), the Deputy Attorney General (Legislation) and the Director of the High Court of Justice Department of the State’s Attorney’s Office. The team held a series of meetings at the Deputy Attorney General’s office, conducted in-depth research into the provisions of international law on the matter, and examined the challenges unique to addressing hunger strikes in Israeli prisons. On August 7, 2013, a draft memorandum of the Law was distributed to the Israel Medical Association (hereinafter: IMA), the National Council for Bioethics, and the Public Defender’s Office (see below in regard to the differences between the Memorandum and the Bill). IMA strongly objected to the proposal in the Memorandum. On May 18, 2014, the Knesset Ministerial Committee for Legislation approved the Bill in resolution HK/869, and it was referred for a first reading by the 19th Knesset. The Bill was submitted to the Knesset for first reading on June 9, 2014. At the end of the debate, it was decided to refer the Bill to the House Committee, which decided to pass the Bill on to the Knesset Internal Affairs and Environment Committee. This Committee convened nine times in order to discuss the Bill. During its discussions, a fruitful deliberation was held with diverse opinions and positions presented by different professional entities from government ministries, the Courts Administration, the Public Defender, IMA and other organizations. Following these discussions, the language of the Bill was revised on certain issues. The Bill was intended to come to a vote in second and third readings by the Knesset on June 30, 2014, but the Knesset hearings for that day were canceled and the Bill was not presented again by the time the Knesset dispersed on December 8, 2014. On July 6, 2015, the Government gave notice as to its desire to apply the continuity rule to the Bill. The Internal Affairs and Environment Committee of the 20th Knesset convened four times to discuss the Bill. Several entities from government ministries and representatives of organizations participated in the discussions. The Committee considered 90 objections that were submitted, and those brought about significant changes in the Bill. The Bill was submitted to the Knesset for second and third readings on July 29, 2015. After a lengthy debate, the Law was passed by a majority of 46 Knesset Members with 40 opposed (see below as to the differences between the Bill and the Law as enacted).

 

The Legal Framework

 

9.         The Law was passed by the Knesset in second and third readings on July 30, 3014, and entered into force upon its publication in the Official Gazette on August 5, 2015. The Law amends the Prisons Ordinance [New Version], 5732-1971 (hereinafter: the Prisons Ordinance) by adding article B2: “Preventing Health Damage to a Hunger Striking Prisoner.”

 

10.       According to the Law, which is detailed and precise, the process for requesting permission to provide medical treatment to a hunger striking prisoner commences with the opinion of the prisoner’s treating physician (or a physician who has recently treated the prisoner), whereby “there is a real possibility that within a short period of time there will be a risk to the prisoner’s life or risk of a severe, irreversible disability, without receiving medical treatment or treatments detailed in the medical opinion” (sec. 19M(a) of the Law). Along with submitting the medical opinion, the Prison Service Commissioner may, with the consent of the Attorney General or a person appointed for such purposes by the Attorney General, approach the President of the District Court or his deputy with a request to provide medical treatment to a prisoner. Such a request will be submitted only after he is persuaded that “a significant effort was made to secure the prisoner’s consent to such treatment, inter alia, by a doctor’s discussion with the prisoner, and after the prisoner received an explanation as to the request to the court and its potential consequences” (sec. 19M(d) of the Law.) A copy of the request for medical treatment shall be submitted by the Prisons Service to the ethics committee, which shall give its opinion on the relevant medical matters after hearing the prisoner (sec. 19M(c) of the Law). The ethics committee’s opinion must be presented to the court, except for cases where “for urgent and exceptional medical reasons resulting from the prisoner’s medical condition” it is not possible to wait for the opinion or to hear the prisoner or his attorney (section 19N(c)(2) of the Law).

 

11.       Before rendering its decision, the court must be persuaded that “a significant effort was made in order to secure the prisoner’s consent for treatment, and in the course of such effort he was informed about his medical condition and the consequences of continuing the hunger strike for his condition in detail, in a manner that is understandable to him under the circumstances, and that he was also given medical information as stated in section 13(b) of the Patient Rights Law, and that the prisoner continued to refuse medical treatment” (sec. 19N(b) of the Law). The Law mandates that the prisoner be represented by an attorney in the court proceedings, and if he is not represented, a public defender will be appointed (sec. 19O(d) of the Law). The court will hear the prisoner or his attorney, and may order that the hearing on the request for medical treatment be conducted in the hospital in which the prisoner is hospitalized (sec. 19O(a) of the Law. The court may conduct the hearing in camera, if  it  is of the opinion that a public hearing may deter the prisoner from freely expressing his position or expressing it at all, or for the purpose of protecting the prisoner’s privacy (sec. 19O(d) of the Law). The court may admit evidence in the absence of the prisoner or his attorney if it is of the opinion that disclosing the evidence may compromise national security, and that its concealment is preferable to its disclosure for the purposes of justice (sec. 19O(e)(1) of the Law).

 

12.       On the merits, before making a decision, the President of the District Court or his Deputy must consider the prisoner’s medical and psychological condition, the consequences of failing to provide treatment, the prospects and risks of the requested treatment and of alternative treatments, the level of the requested treatment’s invasiveness and its impact on the prisoner’s dignity, the prisoner’s position and his reasons, including the reasons for which the prisoner chose to initiate a hunger strike, as well as the outcomes of previous coerced medical treatment, had there been any (sec. 19N(d) of the Law). The court must also take into account considerations of concern for human life or a real concern for serious harm to national security, when evidence is presented to that effect (sec. 19N(e) of the Law).

 

13.       Should the court be persuaded that there is a “real possibility that there will be a risk to the prisoner’s life, or risk of a severe, irreversible disability within a short period of time, and that the medical treatment is expected to benefit the prisoner” (sec. 19N(a)(1) of the Law), it may permit providing medical treatment to a hunger striking prisoner against his will. The medical treatment must be provided “in a way and a place that would ensure maximum protection for the prisoner’s dignity, while avoiding as much as possible causing pain or suffering to the prisoner” (sec. 19P(c) of the Law).

 

14.       In its opinion, the court must detail the type of treatment or treatments that it permits (sec. 19N(6) of the Law). The treatment must be provided to the prisoner by a caregiver in accordance with his area of practice, and in the presence of a physician (sec. 19P(a) of the Law). If the prisoner refuses the necessary treatment, a warden may – at the caregiver’s request – “use reasonable force in order to allow the caregiver to provide the treatment, as long as the use of force is only to the degree necessary to provide the treatment” (sec. 19P(d) of the Law). The treatment is to be “the minimal medical treatment necessary, according to the professional discretion of the treating physician, in order to protect the prisoner’s life or to prevent a serious, irreversible disability” (sec. 19P(a) of the Law). Section 19Q of the Law exempts the caregiver and the medical institution from liability in tort as a result of providing coerced medical treatment.

 

15.       The decision of the court is subject to appeal to the Supreme Court (sec.19S(b) of the Law). The Supreme Court will hear the appeal within 48 hours of its submission (sec. 19S(b) of the Law). It is also possible to ask the court that made the decision to reconsider the request if new facts are discovered, or if the circumstances have changed in a way that could influence the decision (sec. 19R of the Law).

 

16.       To complete the picture, it should be noted that the main points of the Memorandum circulated as described above were similar to the Bill with one notable exception. The Bill added a provision that a copy of the request for permission to provide treatment to the prisoner be delivered to the ethics committee where the prisoner is hospitalized, and that the court’s decision on the request be given after it has received the opinion of the ethics committee (unless the court is of the opinion that, under the circumstances, the request should be denied in limine).

 

17.       The language of the Law, as enacted, was ultimately similar to the Bill, with certain changes. The Law added the requirement, not included in the Bill, for the Attorney General’s consent to submitting a request for permission to provide medical treatment (sec. 19M(a)), and submission of the request was made contingent upon making a significant effort to secure the prisoner’s consent to treatment, and only after the procedure for submitting a request to the court and its consequences were explained to the patient (sec. 19M(d)). Another central difference, which we shall discuss below, is that the Bill placed the security considerations in the primary section that outlines the judicial discretion, and they were included among the factors the court must take into account, such as  the Prisons Service’s responsibility to safeguard the health and life of the prisoner, and the impact of the decision on the ability to maintain security and order in prisons. However, ultimately, the role of the security considerations was reduced in the Law, such that the court may consider factors of “concern for human life or a real concern of serious harm to national security, to the extent it was presented with evidence to this effect”.

 

18.       The constitutionality of Article B2, including sec. 19N(e) of the Law in regard to the considerations for deciding upon the request, is now the subject that requires our decision.

 

The Petitioners’ Arguments

 

The Israel Medical Association’s Arguments

 

19.       IMA, the Petitioner in HCJ 5304/15, is the representative union of physicians in the State of Israel. IMA argues that the Law is not proportionate, is not ethical, is not equal, and undermines the internationally accepted rules of medical ethics, which it has adopted and ratified. IMA claims that force-feeding persons on a hunger strike despite their refusal poses a real risk to their health, and is inconsistent with the overarching principles of preventing harm and protecting the patient’s autonomy over his body, which are the basis for the medical code of ethics. Under international ethics codes, force-feeding is considered torture. Therefore, IMA is obligated to do all it can in order in order to repeal the Law.

 

20.       According to IMA, the Bill was greeted by the absolute, across-the-board objection of the entire medical-scientific community, including the World Medical Association, the National Association of Nurses, the IMA’s Hospital Managers’ Association, as well as the National Council for Bioethics, which was created in accordance with Government Decision no. 1219 of January 31, 2002, in order to provide recommendations to decision makers within the executive, legislative and judiciary branches on ethical issues deriving from developments in research, and in order to form positions for ministers and the Government of Israel in regard to matters that have yet to be regulated in legislation, or whose legislative arrangement required re-examination.

 

21.       IMA maintains that the Law makes an exception of the population of hunger striking prisoners in terms of the general arrangement established in the Patient Rights Law, while seriously infringing the principle of equality, although there is no relevant difference between a hunger striking prisoner and any other patient that would justify making them exceptions to the general arrangement. IMA argues that the difference between hunger striking prisoners and non-prisoners refusing medical treatment concerns non-medical purposes. In IMA’s view, these purposes cannot constitute a relevant difference even if there is greater concern that a prisoner’s hunger strike would lead to a violation of public order.

 

22.       IMA refers to specific arrangements that are exceptions to the general rule established by the Patient Rights Law, such as sec. 68(b) of the Legal Competency and Guardianship Law, 5722-1962 (hereinafter: the Legal Competency Law), according to which a court may assume the role of guardian in extreme cases where medical treatment is necessary for the physical or emotional wellbeing of a ward. According to IMA, the Law in our matter concerns those who are competent to give informed consent but chose knowingly to withhold it. Additionally, the Legal Competency Law requires that the court obtain a medical opinion and weigh medical considerations in regard to protecting the physical or mental health of the minor, the incompetent or the ward, and the court may not consider non-medical considerations. Similarly, in the Treatment of the Mentally Ill Law, 5751-1991 (hereinafter: Treatment of the Mentally Ill Law) was designed to protect the right of the mentally ill to autonomy and to set limits upon the possibility of imposing treatment upon them. This is in contrast of the Law at hand, which reduces the weight given to the patient’s autonomy under the Patient Rights Law. IMA also refers to the Terminally Ill Patient Law, 5766-2005 (hereinafter: the Terminally Ill Patient Law), which establishes a specific arrangement for treating patients whose impending death is certain and unpreventable. According to IMA, the arrangement in the Terminally Ill Patient Law explicitly prioritizes the rights of the patient and his autonomy. Under the Terminally Ill Patient Law, the exclusive considerations in determining medical treatment are the medical condition, the patient’s will, and the level of his suffering. IMA notes that according to the case law, patients with anorexia are not subject to the Treatment of the Mentally Ill Law, but rather to the general arrangement in the Patient Rights Law. Therefore, IMA claims that by extension, there is no justification for a specific arrangement for hunger striking prisoners who are competent, sane and have functional discretion and judgment.

 

23.       According to IMA, the Law creates clear statutory disharmony because its purposes and provisions are inconsistent with, and sometimes stand in obvious opposition to, the purposes and provisions of the general and related arrangements that concern the right to autonomy, the right to refuse medical treatment, and forced medical treatment.

 

24.       Additionally, the Law has two explicit purposes: the first – to protect the life of a hunger striking prisoner (hereinafter: the humanitarian purpose), and the second – to preserve public order and national security within and without the prison walls (hereinafter: the non-medical purpose). IMA argues that the humanitarian purpose was not the primary purpose for which the Law was enacted, but rather it was the non-medical purpose. It claims that the Law was designed to make it possible for the State of Israel to compel a hunger striking prisoner to receive medical treatment contrary to his will. IMA maintains that forcing treatment upon a hunger striking person through force-feeding is a violent and humiliating act that amounts to torture under international standards, and that may irreversibly harm health and even lead to death. As a result, the Law severely infringes the prisoners’ constitutional right to dignity, as well as their right to life and to physical integrity, from which the right to autonomy and the right to refuse medical treatment derive. In IMA’s opinion, the right to refuse force-feeding is part of the general right each person, as such, holds to refuse medical treatment. This right is not denied to those inside prison walls.

 

25.       IMA reminds us that hunger striking has been recognized as a means of expression and protest. It argues that the Law seriously infringes the prisoners’ freedom of expression by denying them, in effect, what is practically their sole legitimate means of protest.

 

26.       IMA maintains that the Law is not befitting the values of the State of Israel as a Jewish and democratic state, and that, inter alia, coercive use of medical means in order to achieve goals that are not medical is inconsistent with the principles of democracy.

 

27.       In IMA’s opinion, the Law’s purpose is  improper: the dominant purpose of the Law is not a humanitarian purpose. Protecting the lives of prisoners is secondary and is but an intermediate goal that was meant to serve the non-medical purpose of the Law. The non-medical purpose does not meet the test of a real public interest, neither under the necessity test – the existing statutory arrangement in the Patient Rights Law allows treating hunger striking persons, including prisoners, without coercive and harmful medical intervention – nor under the test of sensitivity for the right. Therefore, the serious harm to human dignity and a person’s autonomy over his body, while humiliating him and performing invasive medical procedures without consent, and the infringement of his right to equality and freedom of expression, cannot be justified by the need to achieve non-medical purposes, even due to a concern for compromising public order.

 

28.       In IMA’s opinion, the Law does not meet the proportionality tests either. The rational connection test – the arrangement established in the Law is not at all necessary, and may even undermine the chances for successful treatment of hunger strikers and irreversibly damage their health. Currently, the manner of treating hunger strikers is based on close monitoring by a doctor of the hunger striker’s statements of his wishes to receive or refuse treatment, and attempts to persuade the hunger striker to receive full or partial feeding with consent, and with a commitment that he will not be fed against his will. According to IMA, the procedure described is the best way to address hunger strikes – building a relationship of trust between treating physicians and the hunger striking prisoner leads to a negotiation that facilitates arriving at agreements. The ethics committee is viewed as a neutral body that aims to benefit the hunger striking person and to seek his best interest, rather than acting on anyone’s “behalf” or as a “threatening” institutional arm. In the IMA’s view, the small number of cases in which the matter of hunger striking prisoners were brought before the ethics committee is worth noting, and is a result of the trust relationship formed between the doctor and the hunger striking prisoner – a relationship that directly affects the scope of the cooperation between them, and the hunger striker’s consent  to undergo examinations  and to receive vitamins and nutrition intravenously.

 

29.       On the other hand, the arrangement established in the Law significantly alters the system of checks and balances established under sec. 15(2) of the Patient Rights Law. The Law shifts the decision to force medical treatment onto the President of the District Court or to his Deputy – who is not effectively involved in the medical procedure, is not familiar with the professional details and does not have the necessary tools to make an educated decision. In IMA’s opinion, this change may cause irreparable harm to the delicate trust relationship between hunger striking prisoners and the medical system, and may increase resistance to medical care. Additionally, although the Law requires presenting the court with the opinion of the ethics committee, there is no obligation to consider its opinion in cases of urgency. The patient does not even have the right to submit an opposing medical opinion, and the court has no authority to appoint another expert on its behalf. Furthermore, the Law requires only that the benefits and risks of providing forced treatment be considered, whereas the Patient Rights Law requires an expectation that the treatment will significantly improve the patient’s medical condition. And while the Law requires considering the position of the prisoner and his reasons among the considerations for coercing medical treatment, the Patient Rights Law requires a reasonable basis for assuming that the patient would retroactively consent. Moreover, the Law makes it possible to order coercive treatment in reliance upon privileged evidence, as opposed to the arrangement in the Patient Rights Law, which does not involve a judicial procedure. The Law even explicitly permits the use of force against a hunger striking prisoner in order to facilitate the  coerced treatment, whereas the Patient Rights Law does not explicitly permit this.

 

30.       IMA further maintains that it is doubtful whether forced-feeding can  save the life of a hunger striking prisoner. Rather, force-feeding that may bring about precisely the result about which the State is concerned –  disturbance of the peace, additional acts of protest and significant national and international reactions, as well as health risks and even the death of the hunger striking prisoner.

 

31.       IMA adds that there is a less harmful means for achieving the purpose of protecting the lives of prisoners, under sec. 15(2) of the Patient Rights Law and in accordance with the rules of medical ethics and the physician’s independent discretion. As for the proportionality stricto sensu test – IMA believes that the very assumption that some benefit may be derived as a result of implementing the Law is in doubt. On the contrary, the Law may cause extremely severe harm to prisoners, as well as to doctors and medicine in Israel.

 

32.       IMA maintains that the Law is inconsistent with the fundamental principles of medical ethics in Israel and around the world: autonomy, preventing harm to a patient, benefiting the patient, equality and distributive justice. According to IMA, the Law would compromise the doctor-patient relationship because a constant threat will hang over the heads of hunger striking prisoners that would lead to irreversible harm to the fragile trust prisoners place in prison doctors, as well as hospital doctors. IMA believes that it is not a hospital doctor’s role to  participate in implementing governmental decisions that serve non-medical purposes against the will of the patient, and to prefer non-medical considerations over medical considerations. IMA maintains that as a result of implementing the Law, a doctor may find himself in a conflict between his ethical duties and his duties as an employee required to provide a medical opinion to the Prisons Service Commissioner, or to administer forced treatment. In IMA’s opinion, issuing a judicial order by the President of a District Court or by his Deputy compelling medical treatment would lead to a situation in which no doctor would agree to execute the order, or that a doctor who would execute it would be committing an ethical violation that would expose him to disciplinary action by the IMA’s ethics board.

 

33.       IMA presented an enlightening survey of how different countries around the world contend with hunger strikes by detainees, prisoners, or those seeking asylum within their borders (Appendix P/38). The remaining Petitioners, as well as the Respondents, have also shed light on this issue. I will discuss their survey in depth, below.

 

The Petitioners Arguments in HCJ 5441/15: Al Mezan Center for Human Rights and

the Yusuf Al-Siddiq Institute for Prisoner Support

 

34.       The Petitioners in HCJ 5441/15 – organizations active in the field of human rights and social change, including protecting the rights of Palestinian prisoners – also contend that the Law is unconstitutional. It blatantly contradicts the fundamental right to dignity as it violates one’s right to autonomy over one’s body, as well freedom of expression and protest in a manner that negates a prisoner’s effective ability to express his position in an attempt to influence prison and state authorities. According to the Petitioners, a hunger strike is a legitimate course of protest, it is non-violent, and its importance grows when prisoners, whose forms of protest are limited due to their incarceration, are concerned. According to the Petitioners, force-feeding, which is designed to end the prisoner’s protest, gravely infringes his humanity. They argue that the Law was designed to provide the Prisons Service and the General Security Service with a tool to “break” a hunger strike, on the basis of considerations of public safety and breach of public order. The Petitioners believe that these considerations are irrelevant to the purpose of a decision regarding  the compelling of medical treatment that is intended to save lives. Therefore, the purpose of the Law is improper because the hunger striking prisoner becomes an instrument in the hands of the authorities for the purpose of implementing policy, and the claim as to protecting the life of the prisoner is merely a fig leaf. In this context, the Petitioners refer to sec. 19O(e) of the Law, which permits the use of privileged evidence in the proceedings, while limiting the prisoner’s ability to mount a defense. In the Petitioners’ view, the extent of the benefit deriving from the Law is also limited because the publicity and public outcry following the forced feeding of a hunger striking person would create animosity and inspire an uprising which may be “life threatening” or compromise prison order. The Petitioners argue that the arrangement in sec. 15 of the Patient Rights Law balances the need to care for the individual’s welfare, and his will and dignity.

 

35.       The Petitioners are of the view that, considering past experience, the security system has a wide range of capabilities for controlling a hunger strikes by prisoners. They maintain that the number of prisoners on hunger strikes decreases from year to year. In this regard, they rely on the response of the Prisons Service, dated July 12, 2015 (Appendix H to their Petition. In their Petition, they note the hunger strike by administrative detainee Muhammad Alan, which was discussed in the Alan case that we mentioned above, and to which we will return.

 

The Petitioners’ Arguments in HCJ 5994/15: Physicians for Human Rights, The Public Committee Against Torture in Israel, HaMoked: Center for the Defence of the Individual founded by Dr. Lotte Salzberger, Yesh Din Volunteers for Human Rights

 

36.       The Petitioners in HCJ 5994/15 are organizations whose mission is to promote and protect human rights in relation to health, to act against torture, and to protect the rights of residents of the West Bank – including Palestinians under arrest or investigation. They join the arguments by the Petitioners as presented above, including the argument whereby force-feeding constitutes torture that is prohibited under Israeli law and under international law. They, too, are of the opinion that the purpose of the Law is “breaking a hunger strike by prisoners, and silencing their protest”.  In their opinion, as well, a hunger strike is a last resort that is taken up in protest over arbitrary and harmful policy and conduct towards Palestinian prisoners and detainees in recent years; in protest against a policy of administrative detention and a policy of solitary confinement; and in order to secure basic human rights such as family visitations, medical care and proper living conditions. The Petitioners review hunger striking in Israel, including the mass hunger strike by Palestinian prisoners in 2012, following which the process of enacting the Law was accelerated. In 2014, there was another mass hunger strike by administrative detainees. According to the Petitioners, a hunger strike is considered a disciplinary offense under the Prisons Ordinance. A Special Commissioner Order (Commissioner Order 04.16.00) grants the Prisons Service tools to address hunger striking prisoners, including revoking of benefits. They maintain that the tools that existed before the Law was passed succeeded in bringing an end to strikes by security prisoners without coercive treatment and without any instance of death as a result of a hunger strike. The Petitioners argue – without any documented substantiation – that it was precisely in cases in which coercive treatment was employed, before the enactment of the Patient Rights Law, that several cases of death occurred (para. 16 of their Petition).

 

37.       These Petitioners, as well, believe that coercive treatment infringes the hard core of human dignity, autonomy, free will, equality and freedom of expression. The Petitioners argue that there is a real possibility for harming human life in cases of force-feeding. In their opinion, the blanket immunity granted by the Law to entities that would provide coercive medical treatment directly violates the right to property of whomever was force-fed, constitutes another form of humiliation, and is not intended for a proper purpose. The Petitioners argue that the cumulative violation of human rights, including the possibility of relying upon privileged evidence in the proceedings, should be considered. They believe that ending a hunger strike by using force will guarantees further protests.

 

38.       In the Petitioners’ view, the Law contradicts the ethics rules of the World Medical Association, as well as the provisions of international law – which we shall address below – contrary to the presumption of compatibility [the Charming Betsy canon – ed.], which presumes that the purpose of a law is, inter alia, to realize the principles of international law and not to violate them. The Petitioners emphasize the prohibition on medical professionals to perform force-feeding of prisoners, and refer, inter alia, to the position of the Red Cross, the United Nations’ Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the 1965 International Convention on the Elimination of All Forms of Racial Discrimination. The Petitioners argue that the Law, which they claim effectively targets only the Palestinian population, is wrongfully discriminatory. In light of all this, the Petitioners believe that the Law must be struck down even before it is implemented, as it is a stain upon the law.,

 

The Response of the Knesset

 

39.       The Knesset believes the Petitions should be denied. In its opinion, the Law creates a supplemental arrangement to the existing arrangement in the Patient Rights Law, which responds to the special complexity that arises when the patient refusing medical treatment is a prisoner in the charge of the State, and whose medical condition is a product of a deliberate decision to undertake a hunger strike. According to the Knesset, the Law strikes a delicate balance between the State’s responsibility for the welfare of the prisoner and the sanctity of his life, and respecting the prisoner’s autonomy and wishes not to receive medical treatment. The Law was designed to allow a treating physician to care for the welfare of a hunger striking prisoner, subject to the exceptions that are meant to protect the prisoner’s dignity, under the strict supervision and monitoring of various judicial and medical entities.

 

40.       The Knesset emphasizes that the President of the District Court or his Deputy may permit providing medical treatment to a hunger striking prisoner despite the prisoner’s refusal, but they cannot order providing such treatment, and the matter remains in the discretion of the treatment provider (sec. 19P(a) of the Law). If the treatment provider chooses to treat the prisoner against his will, in accordance with the permission granted, he is required to provide “the minimum treatment necessary in the caregiver’s professional discretion to maintain the prisoner’s life or prevent severe, irreversible disability” (sec. 19P(a) of the Law). In light of this, the Knesset believes this is a balanced procedure that is meant to provide the most minimal treatment, in the most extreme cases, where treatment is required in order to save the life of the prisoner, or in order to prevent his severe, irreversible disability.

 

41.       The Knesset argues that although the Law permits the infringement of certain constitutional rights of prisoners – the right to autonomy and dignity – this infringement is intended for proper purposes and passes the proportionality tests established in the Limitations Clause of Basic Law: Human Dignity and Liberty. The Knesset finds evidence for this in the thorough legislative process that brought about significant changes in the Law’s language, whereby balances and mitigating elements were added. According to the Knesset, the alleged infringements of certain constitutional rights enable protection of other constitutional rights, first and foremost the prisoners’ right to life. The Knesset emphasizes that a prisoner has no constitutional right to hunger strike. A hunger strike in itself cannot be considered part of the freedom of political expression granted to a prisoner. In the Knesset’s opinion, preventing a hunger strike does not itself infringe the prisoner’s constitutional rights.

 

42.       The Knesset maintains that the Law meets the requirements of the Limitations Clause, as it is intended for a proper purpose and its infringement of the constitutional rights of prisoners passes the proportionality tests. The Knesset argues that the purposes grounding the Law are most proper, and befit the values of the State of Israel as a Jewish and democratic State. The Law is founded upon two intertwined purposes: the first, and primary one, which derives from the central value of the sanctity of life, concerns saving the life of a hunger striking prisoner and protecting his health and welfare. The second is protecting national security and the lives of others who may be at risk as a result of the hunger strike. As noted, a conditio sine qua non for initiating the procedure under the Law is the prisoner’s serious medical condition. The forced medical treatment that can be provided under the Law is “the minimal necessary medical treatment.” Thus, it is clear that the central purpose of the arrangement is to protect the life and health of the prisoner. According to the Knesset, it cannot be disputed that persevering a person’s life and health is a proper purpose.

 

43.       According to the Knesset, even the secondary purpose – the security purpose – is a proper purpose. Security considerations would only be taken into account when a treating physician finds that the prisoner’s medical condition is most serious and that there is real risk to his life, or that he would sustain severe, irreversible disability. In such circumstances, the court may consider “considerations of risk to human life or a real concern of serious harm to national security, to the extent that evidence to this effect is presented to the court” (sec. 19N(e) of the Law). In the Knesset’s opinion, it is clear that a purpose that concerns preventing risk to “human life” or “serious harm to national security” is a proper purpose. The Knesset argues that the combination of medical purposes and “non-medical” purposes is not unusual in Israeli legislation. It refers, for example, to the Treatment of the Mentally Ill Law. According to the Knesset, there is no contradiction between the security purpose and the humanitarian purpose: the death of a prisoner as a result of a hunger strike is a dire, undesirable outcome, both from the standpoint of the sanctity of life and in terms of the consequences for security that may follow his death. In effect, it is precisely the approach that argues for preventing medical treatment of a hunger striking prisoner who is in grave danger that gives priority to non-medical purposes over purely medical considerations. The Knesset also argues that even were there a distinction between the two said purposes, according to the case law of the Supreme Court, when the dominant purpose of a statutory arrangement is a proper and legitimate one, it may “cure” an additional purpose that cannot stand on its own.

 

44.       In the Knesset’s view, the two purposes befit the values of the State of Israel as a Jewish and democratic state, and the Law realizes the values of Israel both as a Jewish state and as a democratic state. It maintains that the Law also meets the proportionality tests: the Law inherently realizes the rational connection test because there is a sufficient likelihood that the procedure will reasonably contribute to achieving the purposes of the arrangement: the entities taking part in the procedure are required to examine the potential that the forced medical treatment would improve the prisoner’s condition; the treatment provided would only be the minimum required to protect the prisoner’s life or to prevent a serious disability. In the Knesset’s opinion, the claim that in the past there were cases where forced medical treatment of prisoners led to irreversible harm and even death is insufficient to disprove the existence of a rational connection between providing treatment without consent and saving the life of a prisoner. The Knesset argues that the claim according to which the Law would compromise the trust relationship between the doctor and patient is unfounded. This is because even under the Law, the doctor must invest significant effort into securing the consent of the prisoner to receive medical treatment. The Law meets the less harmful means test because sec. 15(2) of the Patient Rights Law does not realize the purpose of saving the life (or preventing serious disability) of a hunger striking prisoner to a similar extent. The Law also meets the proportionality stricto sensu test: the Law creates an arrangement that is proportionate and balanced, which seeks only to minimally infringe the prisoner’s autonomy, while protecting his life and ensuring close supervision and monitoring of the entire process. The process begins with a medical opinion by the treating physician. Treatment may be provided only by a professional caregiver, in the presence of a physician, and it is the minimal treatment necessary in order to prevent death or a severe, irreversible disability. Even in such circumstances, the caregiver still has discretion not to provide the treatment that the court permitted. The Law includes different supervision mechanisms that are meant to ensure that permission will be granted only in instances where there is a real need for it. Emphasis has been placed on the prisoner’s participation and on attempts to persuade him to receive the necessary treatment.

 

45.       In the Knesset’s opinion, the argument as to the legislative disharmony, as well as the ethics argument that IMA made, cannot be independent grounds for striking down primary legislation by the Knesset. Instead, constitutional grounds are necessary, that is, only if a statute is inconsistent with the Basic Laws, and as explained above, according to the Knesset this is not the case. As for the rules of medical ethics – without diminishing their importance – such rules cannot detract from primary legislation by the Knesset or override it. This is especially true when, even in other democratic states, arrangements exist which permit providing medical treatment without the consent of a hunger striking prisoner under certain circumstances. As to the argument of legislative disharmony, in the Knesset’s opinion this argument must be rejected as the differences between the Law and the existing arrangement in the Patient Rights Law are  not significant. The Law is a supplemental one that expands the arrangement established by the Patient Rights Law. The Law’s unique elements are grounded upon the relevant difference between the issue of a hunger striking prisoner who is in State custody, and a different patient who is not a prisoner, and therefore there is no disharmony.

 

46.       Finally, the Knesset reminds us that the Court must act with caution and restraint in exercising its power of judicial review over the Knesset’s legislation, because setting social policy is within the authority of the legislature. In its view, under the circumstances there are no grounds for the Court’s intervention in the value-based determination of the legislature.

 

The Response of the State Respondents: The Government of Israel, the Minister of Public Security, the Attorney General, the Prisons Service and the Prisons Service Commissioner

 

47.       The position of the State Respondents (hereinafter: the Respondents) is also that the Petitions must be denied in the absence of grounds for judicial intervention in primary legislation. According to them, the Law was enacted in a comprehensive, thorough, professional legislative process that was exceptional in its scope. This is a constitutional statute that serves important, proper purposes, and appropriately balances the State’s duty to protect the sanctity of life, in general, and the life of a prisoner who is in its charge, in particular, and the value of the prisoner’s autonomy to make decisions over his body and use it as a tool for expressing protest. According to the Respondents, sec. 15(2) of the Patient Rights Law does not provide a satisfactory response for the State to handle the recurring phenomenon of extended hunger strikes by prisoners in all its aspects. The Law is a supplementary arrangement to the Patient Rights Law that will be implemented only after all attempts at negotiation with the hunger striking prisoner have been exhausted.

 

48.       The Respondents claim that past experience shows that the ethics committee has difficulty in “predicting” the future will of a hunger striking person and determining the chance that he would give his consent to treatment retroactively, along with its understandable inclination to consider the autonomy and will of the patient as much as possible. This has led to the outcome that in recent years, medical treatment has rarely been provided to a hunger striking prisoner against his will, even when there was serious risk to his life. Medical intervention mostly occurred only when the hunger striker reached a state of medical emergency. In addition, the ethics committee is not authorized to consider other factors inherent to the very fact that the hunger striking person is a prisoner who is in the custody of the State.

 

49.       In the Respondents’ opinion, a hunger striking prisoner does not wish to die, and he does not see death as a desirable result of his struggle, but rather – at most – a price that he is willing to pay in the name of the struggle. In their opinion, the struggle of a hunger striking prisoner does not always reflect an autonomous decision by the prisoner. At times, his decision is influenced by external pressures, in accordance with an organizational decision by the terrorist organization to which he belongs, for the purpose of improving the image or status of the prisoner within the organization or a different population. In addition, when the basis for the hunger strike is an issue that has political aspects, the hunger strike becomes a tool in a struggle that is essentially political, which involves those who support the hunger striker and influence him, on one hand, while influencing those who oppose his political demands or who consider themselves harmed by them, on the other. This political struggle may escalate as the hunger striker’s condition progresses to a risk of death. Therefore, the hunger strike may cause a real risk to national security.

 

50.       The Respondents argue that there is no dispute that the Law infringes the autonomy of a hunger striking prisoner and his freedom of expression, but they believe that the Law serves a proper purpose, befits the values of the State of Israel as a Jewish and democratic State, and meets the proportionality tests established in the Limitations Clause. The Respondents explain that the treatment given to a hunger striker may include a wide range of treatments and tests, which may change according to the condition of each patient, and that are provided based on medical need. The Law permits a range of discretion in the selection of the treatment that would most improve the condition of the hunger striker. The Respondents deny that the Law violates equality. In their view, there is a relevant difference between patients who are hunger striking prisoners and other patients, which justifies special treatment for them.

 

51.       According to the Respondents, the purpose grounding the Law is that of expanding the means at the State’s disposal for the purpose of protecting the life, physical integrity, and health of a hunger striking prisoner who is under the direct charge of the State, while minimizing the harm that may be caused to his quality of life as a result of the medical harm that may suffer. Another purpose is to protect the security of the public and of the State from the consequences of the hunger strike itself, and from its possible consequences for the entire public – consequences that may very likely harm public safety and the rule of law.

 

52.       According to the Respondents, the purpose of preserving the life, health and physical integrity of the prisoner is consistent with the Commissioner’s Order “Preventing Losses – Treatment and Monitoring” (Order no. 04.54.01 dated October 13, 2004), and is also consistent with the provisions of sec. 15(2) of the Patient Rights Law. In the Respondents’ opinion, the fact that the obligation to protect the life of the prisoner, his physical integrity and his health is not solely an independent purpose, but one that also serves the goals of protecting the security of the state and its residents does not detract from the legitimacy of this obligation. At the basis of the Law is the purpose of protecting the life of a hunger striking prisoner. We are concerned with a proper purpose – protecting the right to life and its sanctity, which justifies infringing the autonomy of the prisoner. According to the Respondents, the right to autonomy is not absolute even in the fields of medicine and ethics. Thus, for example, the Terminally Ill Patient Law establishes the sanctity of life as a fundamental principle, and the Patient Rights Law permits violating the autonomy of a patient in medical emergencies. Another purpose of the Law is to protect the safety and wellbeing of the public from the consequences of a hunger strike, which is used as a tool to bring about the release of hunger striking prisoners despite the danger they pose to the public and to national security.

 

53.       In the Respondents’ opinion, the Law does not infringe the constitutional right to an extent beyond what is necessary. There is a rational connection between the purpose and the arrangements established in the Law. Addressing the issue solely through the Patient Rights Law posed significant difficulties, and even resulted in medical treatment being provided to hunger striking prisoners only after loss of consciousness and in a state of medical emergency, in accordance with sec. 15(3) of the Patient Rights Law. The balanced arrangement established in the Law responds to the unique aspects of the issue, and makes it possible to extend the life of a hunger striking prisoner and protect his health, as much as possible. According to the Respondents, in any case, if no caregiver would agree to act upon the permission granted under the Law, the Law would not be implemented and, in any event, no harm would be caused. The Law also meets the condition of the less harmful means, as it establishes a number of restrictions that limit the infringement of rights by establishing strict tests for implementing the Law’s arrangement, as well as by the demand for exhausting the possible ways to secure the prisoner’s consent, and by the decision procedure – the considerations that the President of the District Court is instructed to take into account, and the authority to grant a proportionate permit that is tailored to the type of treatment necessary.

 

54.       According to the Respondents, the State of Israel respects and complies with its obligations under international law, including the prohibition on torture and cruel, inhumane and humiliating treatment under the U.N. Convention against Torture and other conventions. However, according to them, international law does not comprise any specific rule prohibiting the providing of treatment in general, or artificially feeding a hunger striking prisoner against this will, as a matter of principle. According to the jurisprudence of the various international tribunals, forcible feeding does not necessarily amount to torture or cruel treatment prohibited under international law, which we will address further, below.

 

55.       The Respondents note that the IMA’s position has opponents even in the medical community. They refer to a position paper they have attached, dated August 23, 2015, whose signatories include leading Israeli doctors, jurists, ethics and bioethics experts and philosophers (Appendix R/3), according to which, in extreme circumstances, the value of protecting human life and the ethical professional obligation of the doctor to save his life outweighs the infringement of a hunger striker’s autonomous will.

 

56.       In light of all this, the Respondents argue that given the clear public interest in protecting the prisoner’s life, on one hand, and protecting public safety, on the other hand, as well as considering that the infringement is limited and proportionate, the Law is constitutional and does not raise legal grounds for intervention.

 

The Hearings before the Court

 

57.       We held two hearings on the Petitions. During the hearing on September 17, 2015, we raised the question of whether the fact that a hunger striking prisoner is concerned may influence the balance between the considerations. Advocate Orna Lin, representing IMA, reiterated the position of the professional bodies that the preferable practice in treating a hunger striker is the procedural process, which has proven itself,  inasmuch as no hunger striking prisoner has ever died in Israel. She claimed that the number of hunger strikers decreases continually. Advocate Durgam Saif, representing the Petitioners in HCJ 5441/15, reiterated his argument that the true purpose of the Law is to protect national security and the concern for disruptions, which constitutes an irrelevant consideration, and the Law therefore lacks a proper purpose. According to him, the European Court and other countries that have permitted force-feeding have considered only medical factors and not security considerations. Advocate Saif noted that according to the Law it is also possible to permit forced treatment following presenting the judge  privileged evidence. This, too, he argues, renders the procedure unconstitutional. Advocate Tamir Blank argued on behalf of the Petitioners in HCJ 5994/15 that this is a statute that permits carrying out torture in the State of Israel. He also challenged the impossibility for a prisoner harmed as a result of forced treatment to recover damages.

 

58.       We also permitted Dr. Leonid Eidelman, the Chairman of IMA, whose affidavit was attached to IMA’s Petition, to express his objection to the Law. According to Dr. Eidelman, the Law would compromise the ability of doctors to treat patients.

 

59.       As opposed to this, Advocate Dr. Gur Bligh, representing the Knesset’s Legal Adviser, argued that the Petitioners’ approach respects the prisoner’s autonomy to the point of death – an approach that the legislature did not choose. According to him, there are two purposes to the Law: the dominant purpose is that of the sanctity of life, while the secondary purpose is that of security. In the opinion of the Knesset, the Patient Rights Law does not sufficiently respond to the problem because the presumption is that an unconscious hunger striking prisoner would not wish to be fed. Advocate Areen Sfadi-Attila, on behalf of the Respondents, also argued that the Patient Rights Law does not provide tools for addressing a hunger striking prisoner. She explained that the relevant law serves as a last resort, designed to prevent irreversible harm to the hunger striking prisoner, and to permit intervention at the point where risk to life or serious disability may be prevented. This is, inter alia, due of the state’s duty to save the prisoner’s life, as well as to protect the lives of others who may be harmed as a result of the hunger strike. According to her, the purposes of protecting the prisoner’s safety and state security  coexist harmoniously with the purpose of protecting human life, and she is of the opinion that the Law adopted the jurisprudence of the European Court on this issue.

 

60.       On December 10, 2015, the following decision was handed down:

 

A follow-up hearing is to be scheduled before the Panel on one issue alone: the question of the constitutionality of section 19N(e) of the Prisons Ordinance (Amendment No. 48) Law, 2015, which states: “The court shall take into account considerations of risk to human life or real concern for serious harm to national security, to the extent that evidence to such effect has been presented to the court”. The hearing shall be held in three months. The Respondents shall submit a supplementary position on this issue up to two weeks prior to the hearing, and the Petitioners may respond up to five days prior to the hearing.

 

Accordingly, the parties submitted their supplementary positions as follows:

 

The Knesset’s Supplementary Position

 

61.       The Knesset argues that sec. 19N(e) is constitutional and there are no grounds for judicial intervention. According to the Knesset, in the course of the legislative process a significant change was made in the Law to the effect that security considerations were removed from the primary section that guides the discretion of the court (sec. 19N(d) of the Law). They were included in a separate section and significantly reduced, so that only if the court is presented with evidence in this regard, the court shall consider security factors. According to the Knesset, including sec. 19N(e) of the Law was designed to achieve the second, and secondary purpose of the Law. In the Knesset’s view, this is a proper purpose. The Knesset emphasizes that security considerations may not, in and of themselves, lead to providing coercive treatment to a prisoner on a hunger strike. Such factors would be considered only where a treating physician found that the prisoner’s medical condition was extremely serious, and that there was a real risk to his life, or that he would suffer a severe, irreversible disability. Only then would the court take into account “considerations of risk to human life or real concern for serious harm to national security, to the extent that evidence to such effect has been presented to the court”. According to the Knesset, the integration of these purposes is not unusual in Israeli legislation. In its view, there is no contradiction between the security purpose and the humanitarian purpose, which is founded upon the sanctity of life, to the extent that it is possible to say that in the typical situation, the security purpose is “subsumed” by the humanitarian purpose. The Knesset is of the opinion that, in practice, it is precisely the approach that advocates preventing medical treatment to a hunger striking prisoner in grave danger that prioritizes the non-medical purposes over the pure medical considerations. The Knesset reiterates its argument that even were there a distinction between the two purposes, and even were it argued that the security purpose cannot stand independently, this Court has ruled in the past that when the dominant purpose of a legislative arrangement is proper and legitimate, this may “cure” an additional purpose that cannot stand on its own.

 

62.       In the Knesset’s opinion, sec. 19N(e) of the Law is proportionate. The section meets the rational connection test – allowing the court the possibility to factor in security considerations once evidence in this regard has been presented, would best contribute to realizing the security purpose of the arrangement, and certainly establishes the potential for realizing it. The section meets the less restrictive means test – it is hard to see how it would be possible to realize the security purpose without permitting, when appropriate, that the court take security considerations into account once evidence to this effect has been brought before it. The alternative means proposed by the Petitioners – the arrangement established by sec. 15(2) of the Patient Rights Law, cannot be deemed capable of achieving the purposes of the Law to the same extent, while limiting infringement of the prisoner’s rights. The section also meets the test of proportionality in the “narrow” sense: it is proportional and balanced, and ensures that the infringement of the prisoner’s autonomy is minimal. The security factors listed in the section could never, in and of themselves, lead to initiating a procedure according to the Law. Once the case has been brought before the court on pure medical grounds, and to the extent that such evidence to this effect has been presented, the court may also take into account the security considerations alongside the entirety of other considerations and the opinion of the ethics committee. Additionally, according to the language of the Law as enacted, there must be concrete evidence that substantiates a “concern for human life” or a “real concern for serious harm to national security.” This is a relatively high threshold, which requires substantial evidence. Furthermore, even where the court permits coercive treatment of a prisoner, that does not require the caregiver to provide such treatment (sec. 19P(e) of the Law.) In any case, the treatment actually provided would be the product of only medical considerations (end of sec. 19P(a) of the Law).

 

63.       In effect, the Knesset argues that the court’s authority to factor in security considerations was not meant to outweigh the medical considerations, but to balance other non-medical considerations that may lead the prisoner to put his health, and as a result the entire public, at risk.

 

The State Respondents’ Supplementary Position

 

64.       According to the Respondents, as well, sec. 19N(e) of the Law is constitutional. It was argued that it is impossible to commence a proceeding on a request to permit medical treatment, and such permission cannot be granted, based solely upon security considerations, but only in order to realize the objective of protecting the life of a prisoner, which is the original purpose for recourse to the Law. The position of the Respondents is that in instances where there is real possibility that the prisoner would be at risk of death or of a severe, irreversible disability within a short period of time, and that the medical treatment is expected to improve his condition, the sanctity of life outweighs the prisoner’s autonomy, and the District Court will have no need to address security considerations. However, if, and to the extent that it is found that there is a range of judicial discretion for determining the issue of the relation between the sanctity of life and the prisoner’s autonomy, the legislature instructs that in the scope of that discretion, weight should also be given to the real concern for serious harm to state security, to the extent that evidence to such effect has been presented to it. The Law does not establish the relative weight of the various considerations, and the determination in this regard is given to the discretion of the court.

 

65.       The Respondents argue that once the conditions for submitting a request under the Law have been met, maximum weight should properly be attributed to the value of the sanctity of life, and in such a case there should be no need for recourse to sec. 19N(e) of the Law. Even if their position is rejected, there is no constitutional flaw in taking the security considerations into account when balancing other considerations under the Law. According to the Respondents, a hunger strike may become a tool in what is essentially a political struggle, which involves the group of those supporting the hunger striking person, on one hand, and the group of those who oppose his political demands, or who see themselves as harmed by them, on the other hand, and influences them. Such a political struggle may escalate the condition of the hunger striker. Therefore, the need arose for a supplementary legal arrangement to be implemented only once the Patient Rights Law is no longer effective. According to the Respondents, the change that was made to the language of the Law led to limiting the security consideration, for the purpose of reducing the infringement of the prisoner’s right to autonomy. The Respondents say that there is no dispute that granting permission to treat a hunger striking prisoner against his will involves infringing the prisoner’s right to autonomy, including the prisoner’s right to free expression. However, preventing harm to the prisoner’s life is a purpose worthy of protection, just as protecting other human life is a protected fundamental right and one of the duties of the state. Additionally, protecting national security constitutes a real, and even essential, public need in an ongoing security situation that has the potential of harming innocent citizens and residents. Thus, the security purpose of the Law may justify, in appropriate cases, infringing the right to autonomy. The Respondents emphasize that the severe medical condition of a hunger striking prisoner is always the basic premise for adjudicating the request. In their opinion, in terms of the outcome, as well, the security consideration will not stand on its own (sec. 19N(a)(1) of the Law.)

 

66.       The Respondents also believe that the Law is proportionate. Following the procedure in accordance with the requirements of the Law can ensure the realization of the purpose of protecting the lives of others and protecting national security, alongside protecting the life of a prisoner on a hunger strike. The decision of the court is a suitable means for preventing the security risk caused by failing to provide medical treatment to a hunger striking prisoner and the deterioration of his condition as a result of the hunger strike. In their opinion, the balanced arrangement established by the Law meets the second proportionality test, and there is also a reasonable relationship between the right to autonomy and the public benefit deriving from it for the purpose of realizing the legislative purpose. In their opinion, the components of the Law create a proportional and balanced arrangement that minimally infringes the prisoner’s right to autonomy, while protecting his life and ensuring measured, supervised use of the entire process, and the implementation of sec. 19N(e) of the Law in particular. Recourse to the Law would serve as a last resort, after exhausting all efforts under the Patient Rights Law. We are concerned with a strict supervision procedure, and permission for treatment cannot be granted on the basis of the security consideration alone. Therefore, as argued, the Law passes the tests for constitutionality, and does not provide legal grounds for intervention.

 

IMA’s Response to the Supplemental Responses

 

67.       IMA maintains that a constitutional discussion in terms of sec. 19N(e) of the Law as disconnected from the Law as a whole would be incomplete. IMA disputes that the humanitarian purpose is the primary purpose of the Law, whereas the security purpose is secondary to it. According to IMA,  refraining from discussing the ethical issue brought before it is tantamount to the Court’s approval of future judicial orders to violate ethical duties, with all this may imply. IMA referred us to the case of the administrative detainee Muhammad al-Qiq, mentioned above and to which we shall return to below. According to IMA, in that case the hospital doctors refrained from treating Al-Qiq despite the decision of the ethics committee. According to IMA, had the Law implemented in the Al-Qiq case, clearly its goal would have been to put pressure on the doctors to treat Al-Qiq solely for security considerations, in violation of professional ethics. IMA argues that moving the security considerations from the scope of the general section to a separate section in the Law is a technical revision rather than a substantive one. This is because the Law mandates that the security considerations will be considered whenever the state may present the court with such evidence. According to IMA, under the circumstances, a serious concern arises that the state would use the security considerations to lead the court to a wrong determination on a medical matter that is not within its expertise. It argues that the security considerations are not secondary but a primary, central and inseparable part of the considerations that the court must take into account in deciding upon the request under the Law (it refers to the words of Advocate Yoel Hadar, the Legal Adviser of the Ministry of Public Safety, minutes of meeting no. 312 of the Internal Affairs and Environment Committee, the 19th Knesset, p. 23 (June 17, 2014)). According to IMA, the state’s custody over the prisoner and the existence of a security purpose cannot justify violating the fundamental rights of a prisoner. Therefore, the argument that the state is absolutely responsible for the welfare of a hunger striking prisoner such that it may severely infringe his autonomy and personal will must be rejected. According to IMA, violating human rights in order to protect against an abstract danger or “collateral consequences” for public safety that are not connected to the specific prisoner, does not meet the requirements of reasonableness and proportionality and is unconstitutional. The IMA argues that the security purpose is not “subsumed” by the proper medical purpose – the proper dominant purpose cannot cure an improper secondary purpose. In its opinion, the humanitarian purpose is designed to serve the primary purpose – the possibility of imposing medical treatment upon the prisoner. Even were the primary purpose humanitarian, this purpose exists in the Patient Rights Law, and it is doubtful that it is present at all in the Law at hand. Its realization in our case is in doubt. The considerations that led a prisoner to undertake a hunger strike, and the state’s attempt to prevent protest of this type in the future, cannot and should not be part of the judicial decision in regard to his medical condition, and certainly not in regard to forcing medical treatment of questionable medical benefit for the hunger striking prisoner. Non-medical considerations that led the prisoner to go on a hunger strike do not justify considering non-medical factors in order to end it. According to IMA, even if the Law may be viewed as a supplementary arrangement, the concern arises whether its entire purpose is putting additional pressure on physicians through the granting or judicial orders.

 

The Response of the Petitioners in HCJ 5441/15 to the Supplementary Responses

 

68.       According to these Petitioners, as well, the Law as a whole violates individual rights, and sec. 19N(e) cannot be disconnected from the entirety of the Law. In any event, considerations of public safety are irrelevant to the purpose of saving the life of a prisoner on a hunger strike, because they were designed to prevent the possible outcomes resulting from the death of the prisoner rather than the death itself. This removes the section from the scope of the Law’s purported goal: protecting human life. According to the Petitioners, most hunger strikes are by administrative detainees. They argue that distinguishing between detainees or prisoners on hunger strikes according to the impact their death may have upon the public violates equality. Moreover, according to the position of the Respondents, a severe infringement of individual rights is justified in order to prevent the administrative detainee from achieving a “public-opinion victory” over the State of Israel. The Petitioners find support for this in the words of the Deputy Attorney General, Advocate Raz Nizri, in the  debate of the Internal Affairs and Environment Committee: “The Law is intended to provide an additional tool in exceptional situations in order to prevent resolving it by releasing that person about whom there is information that he is involved in terrorism” (minutes of meeting no. 26 of the Internal Affairs and Environment Committee, the 20th Knesset, p. 12 (July 14, 2015)). In the opinion of the Respondents, there is no necessary rational connection between saving the prisoner’s life and the security consideration that is intended to advance other goals. Furthermore, not even one alternative to forced feeding was considered. The Petitioners again challenge the possibility of using privileged evidence during the proceedings under sec. 19O(e) of the Law. They maintain that there is no choice but to discuss this section as well. They argue that they have met their burden to prove infringement of constitutional rights, and thus the burden shifts to the State to show the justification for the infringement, but that the State has not met this burden.

 

The Response of Petitioners in HCJ 5994/15 to the Supplementary Responses

 

69.       In the Petitioners’ opinion, the responses reveal that the purpose of the Law is ending the hunger strike of Palestinian prisoners and silencing their protest. In their opinion, physicians would find themselves in an impossible situation in which they may become torturers against their will. According to the Petitioners, the position of the Respondents means that in any case where the matter of a hunger striking prisoner would reach the court, the conditions listed in sec. 19N(3) of the Law would effectively be met, and security considerations are supposed to, or may be considered. In the Petitioners’ opinion, because of the language chosen -- “a real concern for serious harm to national security” – it is likely that security considerations would be attributed greater weight, and the chance that the court would reject the request to permit forced medical treatment is negligible. In their view, considering non-medical factors in the course of a request to permit forced medical treatment constitutes sanctioning torture through legislation, despite the absolute prohibition on torture. The Petitioners reiterate that the purpose of the legislation is political, and it is not preventing risk to the life of a prisoner on a hunger strike. They believe that even if according to the Respondents it were possible to strike a balance between life and autonomous will, it is not at all clear why it is necessary to insert a non-medical security consideration, and how such a consideration would serve the balance between the two values. The Petitioners argue that it cannot be claimed that, on one hand, sec. 19N(e) of the Law is unnecessary, while on the other hand holding on to it for dear life. In the Petitioners’ opinion, there is no link between protecting the prisoner’s life and his autonomy, and considerations of public safety – these are contradictory factors. The Respondents also fail to explain why forced feeding would not bring about the severe outcome of harming security and human life. According to Petitioners, the Respondent’s argument that implementing the Patient Rights Law alone may cause a prisoner on a hunger strike serious and irreversible harm – and may even lead to death – is an empty claim  inasmuch as over decades of implementing that law, not one person on a hunger strike had died. The Petitioners argue that the Respondents do not explain  how taking national security considerations into account would reduce the potential for medical harm to a hunger striking prisoner. According to the Petitioners, when “a concern for human life and a real concern for serious harm to national security” hang in the balance, the individual becomes a means to an end, and the road to torture, and to violent and humiliating procedures is short and inevitable.

 

The Follow-up Hearing

70.       On February 21, 2016, we held a follow-up hearing on the question of the constitutionality of sec. 19N(e) of the Law. Advocate Lin repeated the position of IMA, whereby even where the conditions of sec. 19N(d) of the Law are not met, the Law authorizes the court to permit providing medical treatment in a manner that may put the life of a hunger striking prisoner at risk. In IMA’s opinion, once security considerations are put in the mix, a “danger to life” is created. Advocate Saif addressed the issue of the privileged evidence in sec. 19O(e)(1). In his view, this further supports the Law’s unconstitutionality. According to him, the security consideration, which serves as a “back door” to facilitate the forced feeding of a prisoner on a hunger strike, must be struck down. Advocate Blank believed that once a partial medical opinion is submitted, the security considerations would “initiate themselves”. In his view, including security considerations in regard to a medical procedure may lead to painful, invasive and severe treatment that would amount to torture or humiliation. On the other hand, Advocate Dr. Bligh commented on behalf of the Knesset that inasmuch as the prisoner’s public and political considerations are at the basis of his hunger strike, the State, too, should be permitted to take security considerations into account in certain circumstances, however only when necessary to protect the welfare of others. Advocate Sfadi-Attila explained on behalf of the State Respondents that the purpose of the section comprising the security considerations is to equip the District Court with additional  balancing considerations. This section instructs the court to weigh the prisoner’s right to autonomy  against the consequences that a risk to his life, or  his death, may pose for other people, on the basis of evidence presented to it. Advocate Sfadi-Attila further explained that under the amendment, should the court conclude that it is concerned with a prisoner who is at mortal risk and that the treatment may save his life, that would be sufficient for permitting forced medical treatment. However, the court can consider the security issue only if the court is undecided. That is, the security factor always accompanies the consideration of the sanctity of life and does not stand on its own as an independent consideration.

 

 71.      Advocate Sfadi-Attila submitted to us a secret opinion prepared by the research unit of the General Security Service. We would note that the Petitioners in HCJ 5994/15 asked to review the opinion. On March 21, 2016, we ruled that “under the circumstances, the Petitioners will only be provided with the paraphrase at the end of the Respondents’ response” whereby “the opinion points to a potential risk of a deterioration of security in and outside the prison as a result of the death of a security prisoner on a hunger strike, and as a result, to a loss of human life.”

 

Decision

72.       We are confronted with an issue that is legally, ethically, publicly, and humanly complex. These Petitions were submitted before the Law had been tested in practice and implemented. We are, therefore, concerned with a principled debate of an issue that is not – or in any event, is not yet – actual. Although, as a rule, the Court does not address theoretical issues, it has been held that there are cases in which petitions must be considered because of the importance of a question that concerns the fundamental principles of the rule of law, inter alia, in light of its “short lifespan” in the circumstances of its implementation. The issue before us is among those due to the real possibility that within a short period of time there may be a threat to the life of a prisoner on a hunger strike, or a possibility of severe, irreversible disability. Naturally, in this state of affairs, the decision on the matter must be handed down within several hours or days, given the prisoner’s severe medical condition (compare: HCJ 6055/95 Tzemach v. Minister of Defense, IsrSC 53 (5) 241, 250 (1999) [English:  http://versa.cardozo.yu.edu/opinions/tzemach-v-minister-defense] (hereinafter: the Tzemach case,)) and therefore we must address the theoretical interpretive question at the outset.

 

73.       It is, therefore, appropriate that we examine the constitutionality of the Law now – and not under the strict time frame established in the Law itself, when the severe medical condition of a hunger striking prisoner would complicate the performing of a thorough judicial examination. I state at the outset that after considering the arguments of the parties, I have reached the conclusion that there are no grounds for granting the Petitions, and that the Law passes the tests of constitutionality. Ultimately, the Law comprises an element of saving lives, and privileging the principle of the sanctity of life is first and last. This is reinforced by the fact that the person concerned is in the custody of the state, which is obligated to provide him with proper medical treatment. I shall explain.

 

74.       It is decided law, anchored in the democratic structure, in respect for the separation of powers, and in common sense that the Court must act with restraint when reviewing statutes enacted by the Knesset, which express the will of the people (see for example: HCJ 8665/14 Desete v. Knesset, para. 22 of the opinion of President M. Naor (August 11, 2015) (hereinafter: the Desete case); HCJ 1213/10 Nir v. Speaker of the Knesset, para. 27 of the opinion of President D. Beinisch (February 23, 2012) (hereinafter: the Nir case)). Special caution is warranted when examining the constitutionality of a law (HCJ 7385/13 Eitan – Israeli Immigration Policy v. Government of Israel, para. 23 (September 22, 2014) (hereinafter: the Eitan case); HCJ 1548/07 Israel Bar Association v. Minister of Public Security, para. 17 (July 14, 2008)). The point of departure for examining the constitutionality of a law is, therefore, that it is a statute of the Knesset that expresses the will of the public’s representatives, and as such, the Court must respect it. Thus, the Court will not easily determine that a particular law is unconstitutional (HCJ 3434/96 Hoffnung v. Speaker of the Knesset, IsrSC 50 (3) 57, 67 (1996) (hereinafter: the Hoffnung case); HCJ 4769/95 Menachem v. Minister of Transportation, IsrSC 57(1) 235, 263-64 (2002) (hereinafter: the Menachem case)). It must be born in mind that a statute enacted by the Knesset enjoys a presumption of constitutionality which places upon those who challenge that constitutionality the burden to show, at least prima facie, that the statute is unconstitutional, before the burden may be shifted to the State and the Knesset to justify its constitutionality. The presumption of constitutionality also requires the Court to assume that the law was not intended to undermine constitutional principles (the Hoffnung case, p. 68), and in any event, places upon it a special responsibility.

 

75.       Nevertheless, this does not mean that the law is immune to judicial review. The Court must fulfil its duty under our constitutional regime, certainly since the Basic Laws concerning rights were enacted, and even prior to this (CA 6821/93 United Mizrachi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49(4) 221 (1993) [http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper... A. Barak, Interpretation in Law – Constitutional Interpretation (2005) (pp. 105-118) (Hebrew); HCJ 98/69 Bergman v. Minister of Finance and State Comptroller, IsrSC 23(1) 693 (1969) [http://versa.cardozo.yu.edu/opinions/bergman-v-minister-finance]). The Court must then examine the constitutionality of the legislation enacted by the legislature in order to ascertain whether it is flawed, for example, by violating different types of rights. This examination must be carried out with strict care for the delicate balance between the principles of majority rule and separation of powers, and the protection of human rights and the fundamental principles that ground the Israeli political system. At times, immediate political needs may overly tip the scale in one direction in legislation, and the Court must balance, with institutional respect for the Knesset. Therefore, the constitutional review will, indeed, be carried out, but with proper caution and while avoiding reformulating the policy chosen by the legislature (CrimA 6659/06 Anonymous v. State of Israel, IsrSC 62(4) 329, 372-73 (2008) [http://versa.cardozo.yu.edu/opinions/v-state-israel-1]). As has been stated:

 

                        … this Court cannot ignore a violation of fundamental rights that does not meet the requirements of the Limitations Clause as explicitly established in the Basic Laws. The Court is charged with the duty to ensure that the legislative work of the Knesset does not infringe human rights established under the Basic Laws to a greater extent than is necessary, and it may not abdicate this duty. This examination should be made by striking a delicate balance between the principles of majority rule and the separation of powers, on the one hand, and the protection of human rights and the basic values underlying the system of government in Israel, on the other (HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, para. 14 of President Beinisch’s opinion (November 19, 2009) [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-... (hereinafter: The Human Rights Division case); CrimA 6659/06 Anonymous v. State of Israel, IsrSC 62(4) 329, para. 29 (2008) (hereinafter: the Anonymous case)); (HCJ 7146/12 Adam v. Knesset, para. 67 (September 16, 2013) (hereinafter: the Adam case)).

 

76.       We are, therefore faced with a sensitive, delicate pendulum, and certainly this is the case in the State of Israel in light of the mosaic of its reality and the complexity of its life. As is well known, judicial review is not performed in a vacuum – it is done against the background of the reality with which the law was designed to contend. As described above in detail, the provisions of the Law that are challenged by the Petitions include means that the State selected as part of an attempt to address the phenomenon of hunger strikes by prisoners and detainees, including administrative detainees. The scope of this phenomenon, according to the data we have, is on the decline (Appendix H to Petition 5441/15.) We pray that this Law will never be utilized, and turns out to be unnecessary, and as is known – “it is not for us to judge the wisdom of the legislature and the need for some particular legislation or another, whatever our position as citizens may be. Before us is a legislative product whose constitutional status we must evaluate according to its content – first and foremost – and according to its history, and we will not lock the door to legal developments following its implementation” (from my opinion in HCJ 2311/11 Sabah v. Knesset, para. 3 (2014)). But for the time being, the need to address the challenges arising from the hunger strike phenomenon still stand, and none of us can predict what tomorrow may bring. Against this background, I shall turn to examining the constitutionality of the Law. In my view, the sanctity of life is overarching, as a fundamental tenet of Judaism as well as of every proper human society.

 

The Constitutionality of the Law

77.       As we know, constitutional review is carried out in stages. First, we must examine whether the Law infringes a protected human right. If the answer to this is in the negative – this ends the constitutional review. If the answer is in the affirmative, we must examine if the infringement is lawful, according to the conditions of the Limitations Clause (see for example: HCJ 2605/05 Academic Center for Law and Business v. Minister of Finance, IsrSC 63(2) 545, 595 (2009) (hereinafter: the Prisons Privatization case)). These rules are based on the constitutional approach whereby constitutional rights are relative rights, and  they must be balanced against other rights and interests.

 

78.       The Limitations Clause in Basic Law: Human Dignity and Liberty (sec. 8) establishes four cumulative requirements that the offending Law must meet in order for the infringement to come within the scope of legality. First, constitutional rights cannot be infringed except by a law that befits that values of the State of Israel as a Jewish and democratic state. Additionally, the law must be for a proper purpose. The purpose is proper if it was designed to realize important public interests (see for example HJC 6893/05 Levi v. Government of Israel, IsrSC 59(2) 876, 889 (2005); HJC 6784/06 Shlitner v. Director of Payment of Pensions, para. 78 of Justice A. Procaccia’s opinion (January 12, 2011); Aharon Barak, Interpretation in Law – Constitutional Interpretation, 525 (1994)). Finally, the infringement of the right must be proportionate. The proportionality of the statute is tested through three subtests.

 

79.       The first subtest is the rational connection test, whereby we must examine whether the statute realizes the purpose for which it was enacted. The means selected must lead to achieving the purpose of the statute in a likelihood that is not remote or merely theoretical (see the Nir case, para. 23 of President D. Beinisch’s opinion; HCJ 7052/03 Adalah – the Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61(2) 202, 323 (2006) [http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r... (hereinafter: the Adalah case); HCJ 6133/14 Abu Baker v. Knesset of Israel, para 54 of my opinion (March 26, 2015); Aharon Barak Proportionality in Law – The Infringement of the Constitutional Right and their Limitations, 377, 382 (2010) (Hebrew) (hereinafter: Barak – Proportionality).

 

80.       The second subtest – the less restrictive means test – considers whether among the means that may achieve the purpose of the statute, the legislature has chosen the means that least infringe human rights. And note: the legislature is not required to select alternative means that do not achieve the purpose to the same extent or to a similar extent as the means selected (the Adam case, para 192; HCJ 3752/10 Rubinstein v. Knesset, para. 74 of Justice E. Arbel’s opinion (September 17, 2014); the Tzemach case, p. 269-70.)

 

81.       The third subtest is the proportionality stricto sensu test. In the framework of this test, we must examine whether there is a proper relationship between the benefit deriving from realizing the purposes of the statute and the attendant infringement of constitutional rights. This is a value-based test that is based on a balance between rights and interests. It calculates the social importance of the infringed right, and the type of the infringement and its extent, against the benefit of the statute (see HCJ 6304/09 Lahav - Israel Organization of the Self-Employed v. Attorney General, para. 116 of Justice A. Procaccia’s opinion (September 2, 2010)).

 

82.       If the Court concludes that the reviewed statute does not meet the conditions of the Limitations Clause, then the statute is unconstitutional. In such a case, the Court must determine the consequences of the unconstitutionality in terms of a remedy (see for example: HCJ 2334/02 Stanger v. Speaker of the Knesset, IsrSC 58(1) 786, 792 (2003)); HCJ 2254/12 Samuel v. Minister of Finance, para. 8 of Justice N. Hendel’s opinion (May 15, 2014)).

 

A Prisoner’s Human Rights

83.       As stated above, the Petitioners argue that the Law does not comply with Basic Law: Human Dignity and Liberty because forcible feeding violates the right to dignity, the right to physical integrity, and the right to personal autonomy. It was further argued that a prisoner’s freedom of expression and his ability to protest as he wishes are also violated.

 

84.       Needless to say, the right to dignity  achieved supra-legal status with the enactment of Basic Law: Human Dignity and Liberty, and that “human dignity relies on the recognition of a person’s physical and spiritual integrity, his humanity and his dignity as a person” (the Eitan case, para. 14, per Justice Vogelman). Much has been written on the scope of this right, but there is no dispute that the right to autonomy derives from the right to dignity and constitutes part of the “hard core” of this right. At the base of the right to autonomy stands the recognition of one’s right to self-fulfillment and of one’s right to act according to his will and his choices (the Eitan case, para. 17):

 

           

A person’s right to shape his or her life and fate encompasses all the central aspects of his or her life: place of residence, occupation, the people with whom he or she lives, and the content of his or her beliefs. It is a central existential component of the life of every individual in society. It expresses recognition of the value of every individual as a world unto himself or herself. It is essential for the self-determination of every individual, in the sense that the entirety of an individual’s choices constitutes his or her personality and life. The individual’s right to autonomy is not expressed only in the narrow sense of the ability to choose. It also includes another – physical – dimension of the right to autonomy, relating to a person’s right to be left alone ... The import of the right is, inter alia, that every person has freedom from unsolicited non-consensual interference with his or her body … The recognition of a person’s right to autonomy is a basic component of our legal system, as a legal system in a democratic state. … It constitutes one of the central expressions of the constitutional right of every person in Israel to dignity, a right anchored in Basic Law: Human Dignity and Liberty. 

(CA 2781/93 Ali Daaka v. Carmel Hospital, Haifa, IsrSC 53(4) 526, 570-71 (1999) [http://versa.cardozo.yu.edu/opinions/daaka-v-carmel-hospital]  paras. 15-17 of the opinion of Justice Orr)).

 

85.       We hold it as fundamental that  every right granted to a person as such, is granted to a person even when incarcerated or detained, and that the fact of incarceration or detention alone cannot revoke any of his rights, unless it is required as a result of the denial of his freedom of movement, or where there is an explicit statutory provision to such effect (HCJ 337/84 Hukma v. Minister of Interior, IsrSC 38(2) 826, 832 (1984)). This Court has been called upon repeatedly to consider the rights of prisoners, and has held that a prisoner does not lose the human rights and liberties granted to any person, unless it is necessary for the purposes of the incarceration:

 

                        …the loss of personal liberty and freedom of movement of an inmate, which is inherent in the actual imprisonment, does not justify an additional violation of the other human rights of the inmate to an extent that is not required by the imprisonment itself or in order to realize an essential public interest recognized by law  (the Prisons Privatization case, p. 595 [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-..., para. 17 of the opinion of President D. Beinisch]).

 

And it should be emphasized:

                        The necessary violation of a prisoner’s human rights is rooted primarily in the restriction of his personal liberty, which stems from the incarceration. Restricting a prisoner’s movement in prison necessarily leads to a violation of those incidental human rights whose realization is contingent upon the existence of human liberty, such as the right to an occupation, the right to privacy, and to some extent, even the right to freedom expression. Additional violation of a prisoner’s human right may be required in order to achieve the purpose of maintaining order, safety and discipline in prison for purposes of protecting the security of its inmates. Limitations may also derive from other needs grounded in important public interests, such as general considerations of national security (the Dobrin case, para. 14). However, the purpose of violating the prisoner’s human rights is never to add to the penalty imposed upon him by the court. Its legitimacy relies on the fact that it is a necessary result of the denial of liberty due to incarceration, or that it is required in order to achieve an essential, legally recognized public interest (APA 4463/94 Golan v. Prisons Service, IsrSC 50(4) 136, 154-56; HCJ 221/80 Darwish v. Prisons Service, IsrSC 35(1) 536, 546; HCJ 540/04 Yousef v. Director of the Judea and Samaria Central Prison, IsrSC 40(1) 567, 572-73). (HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security, IsrSC 62(1) 762, 773, per Justice Procaccia (2007) (hereinafter: the Physicians for Human Rights case)).

 

And indeed:

It is established law in Israel that basic human rights “survive” even inside the prison and are conferred on a prisoner (as well as a person under arrest) even inside his prison cell (APA4463/94 Golan v. Prisons Service, IsrSC 50(4) 136, per Justice Mazza (1996) [http://versa.cardozo.yu.edu/opinions/golan-v-prisons-service, para. 12]).

 

This is also the case in regard to the constitutional rights of a prisoner who is in the custody of the state:

                        A prison sentence imposed upon a person does not itself revoke the constitutional human rights he is granted by virtue of the principles of the Israeli constitutional system. Such rights are denied to the prisoner only when their restriction is necessarily required due to the fact that his liberty was revoked because of incarceration, and to an extent that the violation of a protected right is in accordance with the principles of the Limitations Clause in the Basic Law (the Physicians for Human Rights case, p. 773).

 

In practice, it was held that the right to freedom of expression is not denied to a person upon incarceration, however it is substantially reduced:

 

                        It is the decided law of this Court that when entering prison one loses one’s liberty but one does not lose one’s dignity (APA 4463/94 Golan v. Prisons Service, IsrSC 50(4) 136, 152-53; HCJ 355/79 Katalan v. Prisons Service, IsrSC 34(3) 294, 298). Although the prisoner’s right to freedom of movement is denied, he still holds fundamental rights “whose infringement violates a person’s minimal, fundamental needs” (HCJ 114/86 Weil v. State of Israel, IsrSC 41(3) 477, 492). Freedom of expression is among the fundamental rights granted to a prisoner even when he is incarcerated. It is not denied to a person upon his incarceration and is granted to the prisoner even within his cell (APA 4463/94 above, p. 157). Nevertheless, “incarceration severely limits the prisoner’s ability to realize his freedom of expression, and his freedom of expression is, in practice, much more limited than the freedom of expression of a free citizen” (loc..cit.). Thus, restrictions are imposed upon the right of freedom of expression within the prison walls,  the purpose of which is, inter alia,  to promote unique interests “… which are required for the orderly administration and function of prisons: realizing the goals of incarceration, maintaining security, order and discipline in prison, protecting the welfare of prisoners, protecting the welfare of staff and wardens, and so forth” (loc.cit.). (HCJ 7837/04 Borgal v. Prisons Service, IsrSC 59(3) 97, 101 per Justice Y. Adiel (September 14, 2004) (hereinafter: the Borgal case).

 

Restrictions are imposed upon the right of a prisoner to freedom of expression, inter alia, in order to serve the unique interests related to the orderly operation of prisons. In the Borgal case, it was held that a hunger strike is not included among the rights granted to a prisoner:

 

                        Against this background, even if we were to assume that a hunger strike may be considered a legitimate means to express opinions and to realize the right to freedom of expression, taking part in such a strike is not among the rights granted to a person while incarcerated in a prison. A hunger strike, in both its elements, the hunger and the strike, undermine the orderly operation of the prison. As for its first element, the refusal to eat itself is a prison offence under sec. 56(8) of the Prisons Ordinance. In our case this is not a “plain” refusal to eat, but a refusal which expresses organized protest in the form of a strike. An organized strike is also inconsistent with maintaining order and discipline in a prison. In this regard it has already been held: “Taking matters to the extreme, we can say that an everyday demonstration — in a town or village — is not like a demonstration of prisoners inside a prison. Is there anyone who would conceive it possible to allow a demonstration of prisoners in a prison?” (PPA 4463/94 above, p. 180 [http://versa.cardozo.yu.edu/opinions/golan-v-prisons-service], para. 11 of the opinion of M. Cheshin, J.). Therefore, we cannot accept the Petitioners’ argument as to a violation of their right to freedom of expression (emphasis added – E.R) (the Borgal case, p. 101).

 

86.       I shall now turn from general principles to the constitutional analysis of the Law. I will first note that examining the section and its legislative history reveals that the State wished to formulate a unique model, a comprehensive arrangement by primary legislation, in order to address the phenomenon of hunger strikes by prisoners and detainees, which is recurrent in the Israeli reality (see the Explanatory Notes to the Bill – Government Bills, 5774-2014, 762, 870). Those proposing the bill were not unaware of the fact that providing involuntary treatment to a person on a hunger strike raises significant ethical questions for the treating physician (ibid., p. 764). They considered the current arrangement in section 15(2) of the Patient Rights Law, and in their view, as noted in the Explanatory Notes, the existing arrangement in the Patient Rights Law does not “express the unique aspects that characterize the medical condition of the person on a hunger strike, generally – and those of a prisoner on a hunger strike, in particular; the complexity of the question of autonomy of will in circumstances of a prisoner hunger strike, and the broader range of the considerations and circumstances relevant to such a situation that must be weighed in making a decision on providing necessary medical treatment” (ibid., p. 772). Indeed, there can be no dispute that when the person on a hunger strike is a prisoner or a detainee, there is a different set of considerations and balances, and the weight given to the autonomous will of a prisoner or detainee on a hunger strike is not the same as in regard to a person on a hunger strike who is not a prisoner or a detainee. This is because he is in the custody of the state, with all that this may imply.

 

87.       We should already explain that in addressing hunger strikes we must consider another factor, which is also an important part of examining the right to human dignity. A hunger strike, if prolonged, may lead to a loss of life. In the absence of life – where is the person and what is the source of human dignity? The State of Israel is a Jewish and democratic state, and thus we must consider the Jewish ethos of the sanctity of life – any human life – as well. In addition, the jewel in the crown of Basic Law: Human Dignity and Liberty is the statement (in sec. 1):“Fundamental human rights in Israel are founded upon the recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free …” This must not be taken lightly. These are not merely words. They are constitutional norms. This raises the question whether a prisoner, who is in the custody of the public, may decide as he wishes upon ending his life, or whether the sanctity of his life while in custody outweighs his will, also given that realizing his will carries serious potential consequences that go beyond him alone (and see, for example, on this issue the Commissioner’s Order “Preventing Losses – Treatment and Monitoring” (Order no. 04.54.01 of October 13, 2004)), which states that “the Prisons Service sees guarding human life and physical integrity as a value of paramount importance, and is committed to protect the life of a prisoner to the best of its ability”). Perhaps we have here – in the words of our Sages – a case of “he is subjected to pressure until he says I am willing” (TB Yevamot 106a).  That is, at the end of the day, he will be reconciled (and compare section 15(2)(c) of the Patient Rights Law).

 

88.       Before we move on to a thorough examination of the concrete arrangement that is the subject at hand, we will examine the relevant provisions of international law and of the domestic law of other countries.

 

Comparative Law and International Law

 

89.       A review of the relevant legislative provisions and case law from abroad reveals that countries of the western world, as well as international tribunals, are divided on the question of the legitimacy of artificially feeding a prisoner on a hunger strike. Despite the position of the World Medical Association on the matter, it seems that a significant number of western countries permit the artificial feeding of a prisoner in extreme circumstances that present a real danger to his life.

 

90.       We shall start with those who prohibit it. It seems the strongest prohibition on coercive feeding exists in England. There, legislation and case law mandate that life extending treatment – including artificial feeding – should not be provided to a prisoner, regardless of the medical harm, when the person is competent to make decisions regarding his medical condition. See: the Mental Health Act 1983 (hereinafter: MHA) and the Mental Capacity Act 2005 (hereinafter: the MCA), which were amended in 2007 by the Mental Health Act 2007, and see the 2002 guidelines of the English Department of Health to those tasked with prison medical treatment: “Seeking Consent: Working with People in Prison”, as well as the rulings of British courts in the Robb case (R. v. Home Secretary, ex parte Robb [1995] 1 All ER 677); and the Collins case (R. v Collins, ex parte Brady [2000] Lloyd’s Rep Med 355 58) that are consistent with the aforesaid approach. Also see on this issue P. Jacobs, Force Feeding of Prisoners and Detainees on Hunger Strike, 303, 306 (2012) (hereinafter: Jacobs.)

 

91.       It would appear that Canadian law, too, prohibits the artificial feeding of prisoners, in principle. This is because sec. 89 of the Corrections and Conditional Release Act of 1992 stipulates that a medical team is prohibited from force-feeding an inmate by any method, as long as the prisoner has the capacity to understand the consequences of the fast he has undertaken. However, it should be noted that on April 27, 2015, the Canadian Prisons Commissioner published a concrete instruction as to handling prisoners on hunger strikes (“Hunger Strike: Managing an Inmate’s Health”). Under section 2 of this instruction, in light of the risk posed by an extended hunger strike which may cause medical harm or even death, the medical team must intervene for the purposes of saving a prisoner’s life at the stage where the prisoner is unconscious or lacks the ability to make an informed decision as to wanting medical treatment.

 

92.       On the other hand, in France, the United States, Australia, Germany, and Austria, the law permits artificial feeding of a prisoner against his will in extreme cases, which change from state to state.

 

93.       In France, as the Petitioners note, regulation D.364 of the Criminal Procedure Regulations establishes a specific arrangement for treating prisoners on a hunger strike, which permits treating a hunger striking prisoner against his will, but only when the prisoner is in immediate, serious danger. In 2012, the French ministries of justice and health issued instructions for treating prisoners. The instructions state that once it becomes known that a prisoner is on a hunger strike or refuses to drink, the medical unit must be updated as soon as possible, and that the health of the prisoner must be monitored according to the Public Health Law. It is also stipulated that, under section R4127-36, medical treatment will not be given to a prisoner without his consent except in cases of an extended hunger strike leading to immediate and serious risk to his life, and only upon medical request.

 

In the United States and Australia, the situation is somewhat more complex, inter alia, because of the differences between the federal and state laws on the matter. However, there, too, there are arrangements that permit coercive feeding of a hunger striking prisoner under certain circumstances (and see for example: Mara Silver, Note: Testing Cruzan: Prisoners and the Constitutional Question of Self-Starvation, 58 Stan L. Rev. 631 (2005);, Barry K. Tagawa, Prisoner Hunger Strikes: Constitutional Protection for a Fundamental Right, 20 Am. Crim. L. Rev. 569 (1982-83); M. Kenny, and L. Fiske, Regulation 5.35: Coerced Treatment of Detained Asylum Seekers on Hunger Strike. Legal, Ethical and Human Rights Implications, in The Ashgate Research Companion to Migration Law Theory and Policy, (S. Juss, ed.) (Ashgate, 2013).

 

94.       In Germany, section 101 of the Act Concerning the Execution of Prison Sentences and Measures of Rehabilitation and Prevention Involving Deprivation of Liberty (1976), which concerns “Coercive Measures in the Field of Medical Care”, states as follows:

 

                        (1) Medical examinations and treatment under coercion, as well as forced feeding, shall be permissible only in case of danger to life, in case of serious danger to the prisoner’s health, or in case of danger to other persons’ health; such measures must be reasonable for the persons concerned and may not entail a serious danger to the prisoner’s life or health. The prison authority shall not be obliged to execute such measures as long as it can be assumed that the prisoner acts upon his own free will.

(2) For the purposes of health protection and hygiene, a coercive physical examination shall be permissible in addition to that in subsection (1) if it does not involve an operation.

(3) The measures shall be carried out only upon orders from, and under the supervision of a medical officer, except where first aid is rendered in case a medical officer cannot be reached in time and any delay would mean danger to the prisoner’s life.

 

Thus, under German law, involuntary medical treatment of a prisoner, including forced feeding, is possible when there is a significant risk to the health or life of the prisoner or the life of another. Such treatment is permitted only at the instruction of a medical officer and under his supervision, unless urgent intervention is necessary, the medical officer is unavailable and any delay may cause harm to the prisoners’ life. Still, it should be noted that German law empowers the authorities to provide such treatment, but does not require doing so as long as it may be assumed that the prisoner is acting of his own free will.

 

95.       In Austria, section 69(1) of the Prisons Law of 1969 – Strafvollzugsgesetz (StVG) – mandates that in a case where a prisoner refuses to cooperate with a medical examination or with medical treatment, force may be employed in order to compel treatment, provided that the treatment is reasonable and does not pose a risk to life. It also states that the advance approval of the Minister of Justice must be secured, except in urgent cases. Section 69(2) of the statute states that a prisoner on a hunger strike shall be under medical supervision, and should it become necessary, it is permitted to force-feed the prisoner in accordance with the instructions and under the supervision of a doctor.

 

96.       As for international law, according to the Petitioners, artificial feeding against the patient’s will amounts to torture or cruel and inhumane treatment in a manner that violates the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, dated December 10, 1984, which was ratified by Israel on August 4, 1991 (hereinafter: the Convention against Torture), and is inconsistent with article 7 of the International Covenant on Civil and Political Rights of December 16, 1966, which was ratified by Israel on January 3, 1992, and which establishes a similar prohibition. However, the standards established by the Committee for the Prevention of Torture state as follows in regard to contending with hunger strikes by the various states:

 

                        Every patient capable of discernment is free to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances which are applicable to the population as a whole.

 

A classically difficult situation arises when the patient's decision conflicts with the general duty of care incumbent on the doctor. This might happen when the patient is influenced by personal beliefs (eg. refusal of a blood transfusion) or when he is intent on using his body, or even mutilating himself, in order to press his demands, protest against an authority or demonstrate his support for a cause.

 

In the event of a hunger strike, public authorities or professional organizations in some countries will require the doctor to intervene to prevent death as soon as the patient's consciousness becomes seriously impaired. In other countries, the rule is to leave clinical decisions to the doctor in charge, after he has sought advice and weighed up all the relevant facts” (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) CPT Standards p. 42 (2002-2015)).

           

Thus, it is clear that the Committee did not a priori rule out forced feeding, but rather leaves a degree of discretion to states in handling hunger strikes between prison walls, while noting that to the extent that a state may elect to employ this measure, it must be established by law, and be limited to extreme and exceptional circumstances (see also: P. Jacobs, Food for Thought: the CPT and Force-Feeding of Prisoners on Hunger Strike, in Fervet Opus: Liber Amicorum – Anton van Kalmthout, 103, 106-07 (M.S. Groenhuijsen, T. de Roos & T. Kooijmans, eds.) (2010) (hereinafter: Food for Thought).

 

97.       The jurisprudence of the European Court for Human Rights on the issue is also of interest. Article 3 of the European Convention on Human Rights prohibits torture and humiliating penalties and treatment, similar to the prohibition established under article 7 of the International Covenant on Civil and Political Rights, and the Convention against Torture. The question raised before the European Court was whether forced feeding is inconsistent with the above prohibition. In a number of decisions, the European Court acknowledged that the issue creates a conflict between two paramount rights: the first, the individual right to autonomy; the second, the individual right to life. In the matter of Nevmerzhitsky v. Ukraine, the Court established the following balancing formula:

 

                        The Court reiterates that a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food. The Convention organs must nevertheless satisfy themselves that the medical necessity has been convincingly shown to exist (see Herczegfalvy v. Austria, judgment of 24 September 1992, Series A no. 244, p. 26, § 83). Furthermore, the Court must ascertain that the procedural guarantees for the decisions to force-feed are complied with. Moreover, the manner in which the applicant is subjected to force-feeding during the hunger strike shall not trespass the threshold of a minimum level of severity envisaged by the Court’s case law under Article 3 of the Convention (Nevmerzhitsky v. Ukraine, application number 54825/00, §94 (2005)).

 

In that case, the Court adopted a test comprising three cumulative conditions under which forced feeding would not be considered a violation of the European Convention. First, there must be medical necessity for the forced feeding. Second, the decision must be made in a proper procedure and according to the procedural framework established in state law. Third, the method of forced feeding must not exceed the minimal extent of severity permitted by the Convention, that is – does not amount to humiliating or degrading treatment or penalty. That case involved a prisoner who was force-fed through a tube, while restrained to a chair, with a mouth widener attached to his mouth. The Court held that using such means, while the patient resists and through the use of force, may amount to a violation of the Article when it is not medically justified. Further on, the court found that the said treatment was provided without medical justification and without due process, and therefore constituted a violation of Article 3 of the Convention.

 

98.       On the basis of those tests, the Court similarly found in Ciorap v. Moldova that forced feeding in that case amounted to a violation of Article 3. First, it found that there was no medical justification for the treatment. Second, it found that the procedure by which forced feeding was decided upon was improper because the physician who performed the forced feeding did not explain why he did so. It was held that the one purpose of the forced feeding in that case was to limit the prisoner’s right to protest through a hunger strike. Because the treatment caused him great physical pain and humiliation, it was held that this was prohibited torture under the Convention (Ciorap v. Moldova, Application no. 12066/02, §89 (2007)).

 

99.       Similarly, in Rappaz v. Switzerland, the Court dismissed the complaint in limine, once it was found that the decision to force-feed the prisoner against his explicit will – that ultimately was not implemented as he ended the hunger strike – was made according to the above three-pronged test: the decision was made out of medical necessity; it was made through a proper process – in accordance with the limits established in law, by a judge, and only after it was found that the complainant’s condition was serious and it was determined that the treatment would be provided by a professional medical team; and there was no reason to assume that even were the decision implemented, the manner of its implementation would have amounted to humiliating treatment or penalty. Therefore the complaint was dismissed.

 

100.     The conclusion from the above jurisprudence is that the European Court does not prohibit forced feeding as long as it meets the three standards described above: necessity, due process, and that the concrete method of forced feeding does not exceed the minimal severity possible (see also Food for Thought, p. 106). And as noted, even the Committee for the Prevention of Torture is not categorically opposed to employing such means.

 

Now that we have reviewed the comparative law and the provisions of international law, we will return to our own legal system, and examine whether the arrangement established in the amendment to the Law that is the subject of this Petition passes the Israeli tests of constitutionality.

 

Violation of Constitutional Rights

101.     Providing forced medical treatment against the will of a hunger striking prisoner or detainee prima facie violates his constitutional rights, primarily his right to autonomy, and to a certain extent, his freedom of expression as well, even if the latter is generally limited, by its nature, behind prison walls (see the Borgal case, p. 101). I shall reserve the matter of whether the right to life itself can be compelled for another time, and I will assume that there is an infringement of the aforementioned constitutional rights. Thus, we must examine if this infringement is lawful. This examination will proceed in accordance with sec. 8 of Basic Law: Human Dignity and Liberty, whereby:

 

There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or by regulation enacted by virtue of express authorization in such law.

 

102.     Assuming that the first condition – that the violation is by virtue of law – is met, I shall proceed to consider whether the provisions of the Law are consistent with the values of the State of Israel, whether the provisions of the infringing Law are intended for a proper purpose, and whether the infringement is not greater than necessary.

 

Does the Law befit the Values of the State of Israel

 

103.     The second condition of the Limitation Clause demands that the Law befits the values of the State of Israel. This Clause refers to the values of the State of Israel as a Jewish and democratic state, and reflects the tension between the values presented by this case.

 

104.     There is no denying that “giving concrete expression to the idea of a ‘Jewish and democratic state’ is no simple task, as is testified by the extensive legal and other literature that has attempted to do so, as well as most of the important verbiage dedicated to this phrase. Each of the terms – ‘state’, ‘Jewish’ and ‘democratic’ – encompasses a long line of constitutive values that are of its foundations. ‘Each is a fathomless ocean’” (Haim Cohn The Values of a Jewish and Democratic State, Selected Writings 45, 47 (2001) (Hebrew)). “Occasionally they contradict and compete with each other.” (HCJ 466/07 Galon v. Minister of Interior (2012), para. 14, per Justice E. E. Levy). The term “Jewish” primarily refers to “the right of the Jewish people to self-determination, as well as to its ability to defend itself against external threats” (ibid.), and in the framework of democratic existence, the state is committed to the individual rights of those coming within its borders, including the values of liberty, equality, dignity and autonomy (see Asher Maoz, The Values of a Jewish and Democratic State, 19 Iyuney Mishpat  547 (1995) (Hebrew)).

 

105.     As described above, the Law came into being against the background of hunger strikes among security prisoners and administrative detainees, undertaken as a means of protest, and to the point of posing a real risk to their health and lives. As was explained, the Law seeks to realize two interrelated purposes. The primary purpose is saving the life and protecting the health of a hunger striking prisoner. The secondary purpose is protecting State security and the lives of others who may be at risk as a result of the hunger strike.

 

106.     In seeking to realize these purposes, the Law permits the infringement of the hunger striking prisoner’s right to dignity, as well as autonomy over his body, and to make decisions in regard to his life. As opposed to this stands the full force of the value of the sanctity of life – first and foremost of all values, because in the absence of life there can also be no human dignity or sanctity of life – and the need and duty of the State to protect itself and others who may be harmed. These values is not merely those of a Jewish state or of a democracy, but rather they are intertwined – like Siamese twins – in a Jewish and democratic state that seeks to find a proper, sensitive balance of these values. Sanctity of life is not a value exclusive to a Jewish state alone, it is at the heart of a democratic state. A state that values life must, first and foremost, protect the lives of its residents, and certainly the lives of those in its direct charge, such as prisoners and detainees, and this is not only its right but also its duty (HCJ 4764/04 Physicians for Human Rights v. IDF Commander in Gaza, IsrSC 58(5) 385, 406 (2004) [http://versa.cardozo.yu.edu/opinions/physicians-human-rights-v-idf-comma... HCJ 7957/04 Mara’abe v. Prime Minister of Israel, IsrSC 60(2) 477, 500 (2005) [http://versa.cardozo.yu.edu/opinions/mara%E2%80%99abe-v-prime-minister-i...). The State is required to protect itself and meet the security needs of its residents. On the other hand, not only are an individual’s right to autonomy, freedom of expression, and dignity not foreign to the values of Judaism, they are among its core values (see: Nahum Rakover, Human Dignity in Jewish Law, pp. 13-32 (1998) (Hebrew)). Does the Law before us befit the purpose of the State of Israel as Jewish and democratic state? It would seem that the answer to this is in the affirmative. The sanctity of life and the protection of the security of the State and of others are the values underlying the Law, which recognizes the infringement of the autonomy, and possibly the dignity of a person on a hunger strike, and attempts to ensure that this harm be proportionate, as described below. The Law seeks a proper balance between these values, and in this sense, it would therefore appear that our primary task in the next step of the constitutional review is to examine the proper purpose.

 

The Purpose of the Law

107.     Constitutional review of the proper purpose seeks to answer the question whether the purpose of the legislation provides sufficient justification for the infringement of the human right. This examination considers, inter alia, two subsidiary questions: the first relates to the characteristics of the purpose; the second relates to the need for its realization, and whether that sufficiently justifies the infringement of the human right (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619, para. 50 of the opinion of President A. Barak (November 5, 2006)). According to Professor Barak’s general approach, “if the purpose of the infringing law is improper, the infringement is unconstitutional, regardless of whether it is proportionate” (Barak, Proportionality, p. 297). And also: “in examining the threshold question of whether the purpose of the infringing norm is proper, a proper content of the norm is insufficient. Some or other level of necessity or essentialness for realizing that purpose is also required” (ibid., p. 344-45). In other words, the appropriateness of the purpose must be examined separately and independently of the extent of the infringement of the constitutional right, as there is no reason to delay such discussion until the later balancing stage (loc. cit.). According to B. Medina, examining the proper purpose must be strict, and must establish that the purpose of the law is proper only when the expected benefit is relevant to the concrete means taken, considering the infringed right. In his opinion, this is crucial primarily concerning laws that seek to protect national security, which is itself a proper purpose at a high level of abstraction, but not necessarily in light of the concrete means adopted by a particular statute in order to realize it (B. Medina, On “Infringements” of Human Rights and the “Proper Purpose” Requirement (following Aharon Barak, Proportionality—Constitutional Rights and their Limitations), 15 IDC Law Review 281, 311 (2012) (Hebrew)). I will already state that in my opinion, subject to what follows below, the Law at hand meets the tests of both approaches because it stands under the canopy of the sanctity of life, and as noted above, in the absence of life, all the rest – both autonomy and freedom of expression -- is irrelevant..

 

The Dominant Purpose versus the Secondary Purpose

108.     In their responses, and in the hearings before us, the Respondents stated that the Law has two interrelated purposes. The primary purpose of the Law, which derives from the central value of the sanctity of life, concerns protecting the life, health and wellbeing of the prisoner on a hunger strike. This is expressed in sec. 11(1) of the Prisons Ordinance, which mandates that a “prisoner incarcerated in a prison shall be deemed subject to the lawful custody of the prison director” (see, for example, the statement of the Minister for Public Security Gilad Erdan, minutes of meeting no. 26 of the Internal Affairs and Environment Committee, 20th Knesset, pp. 3-4 (July 14, 2015) as well as that of Deputy Attorney General, Advocate Raz Nizri, ibid., pp. 4-5).

 

109.     The Law also has a security purpose, which is preserving the security of the State and protecting the lives of others who may be at risk as a result of the hunger strike. The Respondents maintain that this purpose is secondary to the primary purpose of protecting human life, whereas the Petitioners contend that this is the primary and real purpose for which the Law was intended. Thus, according to the Explanatory Notes to the Bill: “First and foremost, the court must consider the prisoner’s medical condition and the danger posed to his health should he not receive the desired treatment… this is in order to ensure that no decision as to providing forced medical treatment shall be made unless in very serious circumstances, and not as a tool for forcing an end to the hunger strike when only at its outset” (Government Bills, 5774- 2014, 771, 870, emphasis added – E.R.; see also the statement of Knesset Member David Amsalem, Chair of the Internal Affairs and Environment Committee, in presenting the Bill to the Knesset plenum  for second and third readings, pp. 641-43 (July 29, 2015)).

 

110.     It should be noted that ascertaining the dominant purpose is not exhausted by reviewing the legislative history of the Law, which was presented above. The question whether a particular purpose is the dominant purpose of the statute is also examined in light of the specific arrangements it establishes. I shall now turn to this.

 

111.     As noted at the outset, the procedure for requesting permission to provide forced medical treatment to a hunger striking prisoner comprises several steps, as well as the supervision of different bodies, and this should not be taken lightly in the constitutional review, as the legislature went to great lengths to create mechanisms of persuasion and supervision for informed consent. First, a medical opinion by the treating physician is submitted, the Attorney General is approached, and upon obtaining his consent, a request may be submitted to the President of the District Court or his Deputy, and this only after efforts have been made to secure the consent of the prisoner (or the detainee). A copy of the request is forwarded to the ethics committee, as well, which shall give its opinion after hearing the prisoner. The District Court is also required to ensure that efforts have been made to secure the consent of the prisoner. The court hears arguments by the prisoner and examines the range of possible treatments, the benefits and risks of the proposed treatment, the level of its invasiveness, and other considerations. This, in my opinion, supports a conclusion that the dominant purpose of the Law is indeed protecting the life of a prisoner on a hunger strike, subject to exceptions designed to ensure protecting his dignity, along with the close supervision and monitoring of different medical and judicial entities.

 

112.     The secondary purpose of the Law, the security one, is expressed in sec. 19N(e) of the Law, under which the court may consider non-medical factors in making its decision to permit forced medical treatment. We shall address the details of this below.

 

The Purposes of the Law – Proper Purposes?

113.     In my view, it is hard to dispute that saving lives – the said dominant purpose of the Law – is a proper purpose. The right to life is a constitutional right enshrined in Basic Law: Human Dignity and Liberty. Section 1 of Basic Law: Human Dignity and Liberty states, as we recall, that: “Fundamental human rights in Israel are founded upon  recognition of the value of the human being, the sanctity of human life…” and sec. 2 states that: “There shall be no violation of the life, body or dignity of any person as such” (emphases added – E.R.; see also, in another context, my opinion in CA 1326/07 Hammer v. Amit (2012) para. 12 [http://versa.cardozo.yu.edu/opinions/hammer-v-amit]). The sanctity of life constitutes a paramount value in Judaism: “For your own sake, therefore, be most careful” (Deuteronomy 4:15), and only in extreme case will the value of life yield to other values (Yisrael Katz, Force-feeding Hunger Strikers in Jewish Law, in 6 Medical Law and Bioethics 227 (2015) (Hebrew) (hereinafter: Katz), as whoever destroys a soul (of Israel), it is considered as if he destroyed an entire world. And whoever saves a life (of Israel), it is considered as if he saved an entire world. (Maimonides, Mishneh Torah, Hilchot Sanhedrin 12:3); and as Professor E.E.. Orbach showed in his article Whoever Sustains a Single Life…Textual Vicissitudes, the Impact of Censors, and the Matter of Printing, 40 Tarbitz 208ff. (5731) (Hebrew), the correct version does not include the words “of Israel” but refers to the loss of any life and the saving of any life. One is required to be careful and to protect one’s life. A person is prohibited from harming himself, and certainly is not permitted to end his own life (Maimonides, Mishneh Torah, Hilchot Avel 1:11).

 

114.     Jewish law recognized the importance of this value to the extent that it established that saving a life suspends all the prohibitions of the Torah, except for the three heinous offenses of idolatry, bloodshed, and incest (TB Sanhedrin, 74a). Jewish law also establishes that, aside from these three offenses, one must not sacrifice his life even if he so desires, and some have deemed a person who does so as having shed blood (Novellae Ritva [Rabbi Yom Tov Ibn Asevilli (ca. 1260-1320)], Pesachim. 25a (Hebrew)). Maimonides ruled: “… should a gentile attempt to force a Jew to violate one of the Torah's commandments at the pain of death, he should violate the commandment rather than be killed, because [the Torah] states concerning the mitzvot [Lev. 18:5]: ‘by the pursuit of which man shall live’, and not that he should die by them. And if he died rather than transgress, he is held accountable for his life” (Mishneh Torah, Hilchot Yesodei HaTorah 5:1. The three exceptions are enumerated in 5:3).

 

115.     According to Basic Law: Human Dignity and Liberty, the State is obligated to protect the right to life in an effective manner (sec. 4 of the Basic Law). Even under the strict scrutiny of the proper purpose that we addressed above, I believe that the benefit of saving a life is relevant to the means adopted, that is, artificial feeding, and certainly when the prisoner or the detainee is in the custody of the State, and under the circumstances, does not enjoy the same autonomy  as a person who is free, as we have shown above.

 

116.     In this context, we should more carefully examine the position of Jewish law. It would seem that Jewish law prohibits one from hunger striking as part of the general prohibition against self-harm (see Michael Wigoda, Forced Feeding of a Hunger Striker, The Jewish Law Department of the Ministry of Justice (2013) (Hebrew); the following is based in part upon his opinion). Some halakhic decisors derive this prohibition from the verse: “Only take heed, and keep your soul diligently” (Deut. 4:9), whereas others refer to the prohibition “bal tashhit” [“do not destroy/waste”] which prohibits the destruction of things that produce benefit, and derives from the verse “When you besiege a city for a long time, making war against it in order to take it, you shall not destroy its trees by wielding an axe against them; for you may eat of them, but you shall not cut them down.” (Deut. 20:19). The Babylonian Talmud notes that “he who harms himself, although not permitted – is exempt” from punishment by a court (Mishna, Bava Kama 8:6). Over the years, halakhic decisors have ruled that the sources mentioned prohibit a hunger strike (see Responsa Yad Ephraim (Rabbi Ephraim Fischel Weinberger, 19th century, Poland and Israel,) chap. 14; and Rabbi Yehuda Zoldan, Hunger Strike, 15 Tehumin  273 (5766) (Hebrew); but cf. Menachem Felix, And Nevertheless: A Hunger Strike, 15 Tehumin 291 (5766) (Hebrew)). We would also briefly note the words of Rabbi Abraham Isaac HaKohen Kook (19th-20th centuries, Latvia and Palestine), in his letter to Zeev Jabotinsky who went on a hunger strike while held under arrest by forces of the British Mandate: “I am obligated to declare to you, my beloved sons, that this is absolutely and strictly prohibited by our holy, pure religion, the philosophy of life and the light of the world” (Hazon HaGeula, p. 273 (Hebrew)). The prohibition upon an individual’s hunger strike constitutes a source for the State’s authority to act toward ending the strike. Additionally, Maimonides (Rabbi Moses ben Maimon, 12th century, Spain and Egypt) notes that “Our Sages forbade many matters because they involve a threat to life. Whenever a person transgresses these guidelines, saying: ‘I will risk my life, what does this matter to others,’ or ‘I am not careful about these things,’ he should be punished by stripes for rebelliousness.” (Hilkhot Rotzeach uShmirat HaNefesh 11:5).

 

117.     Indeed, the fact that there are those who are willing to end their lives for an idea is no simple matter, and it may be a part of the question of when “death shall be chosen rather than life” (Jeremiah 8:3); see M. Greenberg,  The Worth of Life in the Bible, in Sanctity of Life and Martyrdom: Studies in Memory of Amir Yekutiel,  I. Gafni and A. Ravitzki, eds. (1992) 35 (Hebrew); in the Bible, God calls for us to “choose life” (Deut. 30:19). In regard to suicide, Professor Greenberg writes (ibid., p. 51) “Choosing death over a life of degradation is heroism worthy of note and respect. This appreciation is not a legal ruling, but the Bible is not only a source of law but also a reflection of Israelite values that were not concretized in law.” He further writes (p. 53):

 

Life as depicted by the Bible is, therefore, multicolored and reflects a spectrum of value judgments. For the most part, these judgments are positive: choosing life and hope prevail over despondence and despair. The positive approach is based on a conception of life as the beneficent gift of a Creator who desires life, who shows humans  the path that brings life, and maintains the world that sustains them.

 

These words speak for themselves.

 

118.     Another source considers the general duty to rescue, which is established in the verse: “Do not stand upon the blood of your fellow” (Lev. 19:16). This duty to rescue is anchored in the Talmud: “Where do we learn that he who sees his fellow drowning in a river, or dragged by a beast… that he must save him – the verse states  ‘do not stand upon the blood of your fellow” (TB Sanhedrin 73a) Thus, Maimonides, in his Sefer HaMitzvot,  ruled that the general duty of rescue is a biblical commandment: “The 297th [negative] commandment  is that we are warned in regard to not saving a Jew's life in a case where we see that his life is in danger and we have the ability to save him. For example, when someone is drowning in the sea and we can swim and able to save him” (Maimonides, Sefer HaMitzvot, Negative Commandments, 297). The rulings of Jewish law over the years have established that the duty to rescue applies even when the person at risk asks not to be saved. See, for example, Responsa Melamed LeHoil (Rabbi David Zvi Hoffmann, 19th-20th centuries, Germany) Yoreh Deah 104, where it was held that in a case where parents object to performing surgery upon a sick baby, “the doctor is under a duty to heal, and if he refrains, it is as if he shed blood, and we have not found in the entire Torah that a father and a mother are permitted to risk the lives of their children and prevent the doctor from healing them”. To complete the picture, see also the Do Not Stand on Your Neighbor's Blood Law, 5758-1998, whose explanatory notes state that “this Bill is intended to give  statutory expression in Israeli law to the moral and social value rooted in the Torah (Leviticus 19:16) whereby a person is obligated to assist in saving the life of another person” (Penal Law (Amendment no. 47)  (Do Not Stand on Your Neighbor's Blood) Bill,  5755-1995 (Bills 5755, 456) which was ultimately enacted as an independent law) (Nahum Rakover, “Do Not Stand on Your Neighbor's Blood Law” – Indeed? 17 Mekhkarei Mishpat (2002) (Hebrew)). See also the opinion of Justice Bejski in CrimA 480/85 Kurtam v. State of Israel, IsrSC 40(4) 673, 696-698 (1986), in regard to a drug offender who was operated on against his will in order to save his life after he swallowed bags of heroin, which Dr. Wigoda also cites:

As for me, I do not believe that we must necessarily adopt the principles developed in the United States and in England in regard to this difficult, complex issue -- neither the general principle that prohibits physical treatment by a physician in the absence of the patient’s consent, nor the few exceptions to this principle. I do not underestimate the value of the sources in this regard to which my colleague refers, but I am not persuaded that this approach is consistent with the approach of Jewish philosophy to the sanctity of life as a paramount value, or with  the Jewish tradition as to rescue wherever possible. In this regard, the learned trial judge cited Rabbi Jacob Emden’s Mor uKetziah as follows:

 

“In cases of visible sickness and injury of which a doctor has certain, clear knowledge and understanding, and applies a tested, certain cure, a refusing patient at risk is certainly compelled in any way and form that permits the doctor to heal him, such as cutting the flesh of the injury, or widening an opening, or draining an abscess, or binding a broken bone, and even amputation (in order to save him from death…). In all such cases, he must surely be treated and compelled against his will for the purpose of saving his life, and he must not be listened to if he does not wish for pain and prefers death over life, but instead even a whole limb must be amputated if this is necessary to save him from death, and all that that is required to save the life of the patient must be done even against his will. And each person must be warned of this due to  ‘you shall not stand upon the blood of your fellow’, and this is not dependent upon the consent of the patient, as he is not permitted to commit suicide.”

 

I believe that the principle of the sanctity of life and saving it, as a paramount value, justifies not following those rules that support, almost rigidly but for particular exceptions, the prohibition against intervening in a person’s body without his consent, without regard for the consequences.

 

I believe that the approach deriving from CA 322/63 and CA 461/62, above, represents and complies with the proper approach in Israel, as it is the closest to the Jewish tradition that supports the sanctity of life. Thus, when one is at immediate, certain risk of death, or foreseeable, certain, severe harm to his health, it is indeed permitted to perform surgery or any other intervention in his body even without his consent. This is all the more permitted and even required when such intervention itself does not pose special risks beyond the common risks of surgery or intervention of that kind, and where there is no risk of significant disability.

 

119.     Finally, forced feeding may be justified – from the perspective of Jewish Law -- where a hunger strike poses a threat to others. We learn the primary rule in this regard from the verse: “You shall keep My laws and My rules, by the pursuit of which man shall live: I am the Lord” (Lev. 18:5). And the Talmud states: “Nothing shall stand in the way of saving a life other than idolatry, forbidden sexual relations and bloodshed” (TB Yoma, 82a); and see also Maimonides, Hilkhot Yesodei HaTorah 5:6. The priority that is given to the value of life permits infringing other values to some extent. Thus, the position of Jewish law is that a woman may be compelled to nurse a child – for pay – where that child is at risk (Shulhan Aruch, Even HaEzer, Hilkhot Ketubot 82:5; see also Michael Wigoda, GSS Interrogation in light of the Sources of Jewish Law, The Jewish Law Department of the Ministry of Justice (2000)).

 

120.     This is all consistent with the principles at the foundation of the Terminally Ill Patient Law, 5766-2005. This statute seeks to “regulate the medical treatment provided to a terminally ill patient while properly balancing the value of the sanctity of life and the value of one’s autonomous will and the importance of quality of life” (sec. 1(a)), and it is “based on the values of the State of Israel as a Jewish and democratic state and the fundamental principles of morality, ethics and religion” (sec. 1(b)). According to this statute, the terminally ill patient, as defined there, has the right to ask not to be provided medical treatment for the purposes of extending his life, however, no action designed to cause the death of the patient may be taken, assistance will not be provided for committing suicide, nor shall continuous medical treatment be terminated when its termination may cause the death of the patient, regardless of his will.

 

121.     As for the secondary security purpose, which is concerned with preventing harm to human life other than the hunger striking person, or preventing serious harm to national security, it seems the issue here is somewhat more complex. In the Bill, this purpose is explained as follows:

 

A hunger strike by prisoners is not generally a private act for the purpose of achieving personal gains. Rather, it is part of a public struggle of a political character. Therefore, when deciding how to handle a hunger strike, this aspect, too, must not be ignored. Therefore, for example, at times the increased severity of the hunger strike and the deterioration in the condition of the person on the hunger strike may lead to heated emotions in communities outside of the prison, and in some situations may even result in harm to public safety due to widespread disturbances or the eruption of violent conduct as a sign of solidarity with the hunger striking person and his struggle (ibid., p. 772).

 

122.     As said above, at a high level of abstraction, it cannot be disputed that national security amounts to a proper purpose, even at the cost of some – proportional, as will be discussed below – infringement of human rights. As President Barak simply put it at the time “just as without rights there is no security, so too without security there are no rights.” (the Adalah case, para. 82), and more need not be said. When security is of no concern, life is  of no concern, and where shall that lead us? However, in my view, assuming there is a prima facie infringement of the prisoner’s basic right to autonomy, and the manner in which this harm is caused – and as noted, according to the positions of both the learned Barak and the learned Medina,  when examining the proper purpose, one must consider the necessity of the harm in accordance with the importance of the infringed right and the extent of that infringement – we must ask whether the security purpose is relevant to this means of artificial feeding, subject to the limitations established by the Law. My view is that the answer is in the affirmative, here as well, in the broader context of the sanctity of life. However, the matter must be examined with caution, as we do not live in an ideal world or in a vacuum, and there may be countries that would abuse forced feeding for purposes of oppression. Nevertheless, I believe that we may assume that in the Israeli legal system this risk is not high, and in any event the adjudicating panel of judges will be vigilant in this regard. As for the status of the security consideration, I have noted in the past as follows:

 

                        The security challenges the State has faced – and sadly, still faces – present the Court with legal questions that our forebears had not imagined, but times are changing. Israeli society today is not like that of the founding generation, and this change can also be seen in the area reserved for security considerations… this change has also left its mark in regard to the scope of judicial review over security policy. Thus, Justice Strasberg-Cohen wrote that “national security is not a magic word; it does not have preference in every case and in all circumstances, nor is it equal for every level of security and for every harm thereto (HCJ 4541/94 Alice Miller v. Minister of Defense, IsrSC 49(4) 94, 124 (1995) [http://versa.cardozo.yu.edu/opinions/miller-v-minister-defence]; see also ADA 10/94 Anonymous v. Minister of Defense, IsrSC 53(1) 97, 106 (1997)). Thus, President Barak noted that “human rights cannot receive complete protection, as if there were no terror, and State security cannot receive complete protection, as if there were no human rights. A delicate and sensitive balance is required. This is the price of democracy. It is expensive, but worthwhile. It strengthens the State” (HCJ 7015/02 Ajuri v.  IDF Commander in the West Bank, IsrSC 56(6) 356, 383 (2002) [http://versa.cardozo.yu.edu/opinions/ajuri-v-idf-commander-west-bank]. Therefore, the current approach as to security considerations can be summed up as cautious respect. The caution results from historical situations and different affairs that have cast a shadow over security considerations in the past (the surprise of the Yom Kippur War, the Bus 300 affair, and others.) Respect is warranted since no sensible person does not see that Israel has complex security problems from different directions. (HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister, paras. 39-40 of my opinion (March 27, 2016); see also my article Security and Law: Trends, 44 HaPraklit 409, 410 (5758-60) (Hebrew); my book Paths of Government and Law 265 (5763-2003) (Hebrew); Israel, Security and Law: A Personal Perspective, Mazza Volume (5775) 99).

 

123.     Indeed, in my opinion, were the security purpose the only or primary purpose, it would have been possible to doubt whether it could properly justify forced feeding. As noted, whatever the means of treatment may be – and I will address this below, when considering proportionality – the mere fact that the medical treatment is given against the will of the prisoner means an infringement of autonomy, and although that is necessarily limited behind prison walls, as noted, it still has the power to prevent its violation for a purpose that is external to its core.

 

124.     This infringement of rights that are at the core of human dignity must  be offset by the protection of very important rights (such as the right to life, as noted). As important as national security and public safety may be, and they are very important indeed, they would not alone or primarily be sufficient under the circumstances of this matter to justify an infringement of a prisoner’s right such as forced feeding. The element of caution noted above sets off a red light. Reviewing comparative law supports this conclusion, because as described above, it seems that explicitly employing the security consideration to justify coercive medical treatment of a prisoner is quite unique for the statutory framework chosen by the Israeli legislature, and foreign legal systems, as well as international law, mainly grant exclusivity to medical considerations and the health of the prisoner they wish to feed coercively. In our case, in the Jewish ethos as well, this consideration cannot be seen as exclusive.

 

125.     However, I believe that this is not sufficient to show that the inclusion of security consideration as secondary to the dominant consideration of saving a life amounts to an improper purpose, also bearing in mind that this consideration itself comprises a significant possibility of saving lives – the life of the prisoner, as will be explained – and also the lives of many others. As noted above, despite changes and transformations of different types in the security situation of the State of Israel over the years, the security consideration still exists, clearly and in great force. This requires no evidence. The State of Israel daily faces complex, continually changing security threats that require an appropriate response. Obviously, as noted, even the security consideration concerns protecting human life, and just as protecting a prisoner’s life is, as noted, a proper purpose in itself, the attendant public interest in protecting the safety and the life of others is proper as well (see and compare HCJ 6288/03 Saadeh v. General of the Homefront Command, para. 3 of the opinion of Justice Turkel (2003); HCJ 8567/15 Halabi v. IDF Commander in the West Bank, para. 13 (Dec. 28, 2015)). In light of this, I believe we cannot wholly rule out addressing security considerations to some extent within the Law under review, even if – as we shall address below – this response be limited and, as noted, absolutely secondary to the primary purpose of the Law, which is saving the life of the prisoner for whom treatment is sought, and the response is implemented by the legal and medical mechanisms with strict regard for preventing a “slippery slope”.

 

126.     The combination of purposes is not exceptional in our legislation. Thus, for example, the Eitan case considered the constitutionality of Chapter A of the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014. The State argued that the primary purpose of the law was identification and removal. That was found to be a proper purpose. As for the additional purpose – general deterrence – it was held that “general deterrence in-and-of-itself is not a proper purpose” (the Eitan case, para. 2 of (then) Deputy President M. Naor’s opinion). Still, it was held that there is nothing wrong with a purpose of deterrence when it accompanies another legitimate purpose (ibid., para. 52 of the opinion of Justice U. Vogleman; see and compare HCJ 7015/02 Ajuri v. IDF Commander in the West Bank, IsrSC 56(6) 352, 374 (2002)). Moreover, this Court has already held that where a statute combines several interrelated purposes, greatest weight will be attributed to the dominant purpose, which will be the focus of the constitutional review. However, it was held that the statute’s secondary purposes must not be overlooked, as their implications for human rights must also be examined (the Menachem case, p. 264 and references there.) In my view, it seems that in the present case, both the humanitarian and the security purposes – the latter also based to great extent upon the principle of the sanctity of the life of the innocent who may be harmed because of the consequences of hunger strikes by prisoners or detainees, and despite the change occurring in Israeli society as to the place reserved for security considerations in terms of transparency – are proper. This, given that the first purpose is, as noted, the dominant purpose and the other is secondary to it.

 

The Proportionality Tests

 

127.     In my humble opinion, under the interpretation I propose, the Law – including sec. 19N(e) – meets the requirements of the proportionality tests under the Limitations Clause of Basic Law: Human Dignity and Liberty. The Law meets the rational connection test – correspondence between the legislative means that infringe the constitutional right and the purpose that the statute was designed to achieve. According to President A. Barak in the Movement for Quality Government case (para. 58), it is sufficient that there be a suitable likelihood that the action that infringes the protected right or interest will reasonably contribute to achieving the purpose (see also the Nir case, para. 23). Thus, a proceeding under the Law may be commenced only if the physician treating the prisoner, or whoever had recently treated him, is of the view that without the specified medical treatment  “there is real possibility that within a short period of time the life of the prisoner will be at risk or he may suffer severe, irreversible disability” (sec. 19N(a)(1) of the Law). The list of considerations the court must take into account emphasizes medical aspects, including the condition of the prisoner, the benefits and risks posed by the requested medical treatment and by alternative medical treatments, the level of invasiveness of the requested treatment and its implications for the prisoner’s dignity, as well as the results of the requested treatment (sec. 19N(d)(1)-(3) of the Law). In addition, the coercive medical treatment that may be provided under the Law must be “the minimally necessary medical treatment, according to the professional discretion of the caregiver, in order to protect the life of the prisoner or to prevent serious, irreversible disability” (section 19P(a) of the Law). Moreover, the physician must make  a significant effort to secure the prisoner’s consent to medical treatment (section 19N and section 19P(b) of the Law). Additionally, providing coercive medical care is always subject  to the discretion of the caregiver (sec. 19O(e) of the Law). In other words, under the Law, the District Court must evaluate the potential of the coercive medical treatment to improve the medical condition of the hunger striking prisoner, and ensure that if such treatment be permitted, it will be the minimal required. The court must go to the heart of the matter, demand clarifying medical documentation, and  hear physicians and caregivers. See, in regard to hunger strikes, the Alan case and the Al-Qiq case. Therefore, we can conclude that the means selected by the Law, and the Law’s primary purpose – protecting the life of the hunger striking prisoner or detainee – correspond.

 

128.     The Law also passes the second proportionality test – the less harmful means test. This test, as we know, does not necessarily require choosing the means that is least harmful. It is sufficient to demonstrate that, in terms of the right and the extent of its violation, the means chosen from among the relevant options presents a lesser infringement (see, for example, the Nir case, para. 24). In the matter before us, while it might appear that there is a possible alternative for handling a prisoner on hunger strike – sec. 15(2) of the Patient Rights Law – given the purposes of the statute and the complexity of the situation, it seems this alternative does not achieve the purpose of the Law with comparable efficacy (compare the Eitan case, paras. 60-66). Section 15(2) of the Patient Rights Law instructs:

 

                        15(2)    Should the patient be deemed to be in grave danger but reject medical treatment, which in the circumstances must be given soon, the clinician may perform the treatment against the patient’s will, if an Ethics Committee has confirmed that all the following conditions obtain:

(a) The patient has received information as required to make an informed choice;

(b) The treatment is anticipated to significantly improve the patient’s medical condition;

(c) There are reasonable grounds to suppose that, after receiving treatment, the patient will give his retroactive consent.

 

129.     The arrangement established in sec. 15(2)(c) of the Patient Rights Law permits providing medical treatment without the consent of the prisoner only when “there are reasonable grounds to suppose that, after receiving treatment, the patient will give his retroactive consent.” However, in most cases, a prisoner on a hunger strike who clearly and consistently expresses his ideological objection to receiving medical treatment cannot be provided with medical treatment within the confines of section 15(2)(c) of the Patient Rights Law, even if there is a real risk to his life. This is because the Patient Rights Law requires reasonable grounds to assume that the patient would give his consent retroactively, whereas in our case, often the hunger striking prisoner has no interest in being fed should he lose consciousness, nor as long as he or she is conscious. On an ethical level, the doctor would not always assume that retroactive consent would ultimately be given. Under these circumstances, a hunger strike may end with the death of the prisoner – with all of its consequences. The arrangement established in section 15(2) of the Patient Rights Law is limited to the relationship between the caregiver and the patient, and places maximum weight upon the patient’s autonomy to the very end. This arrangement does not take into account the unique aspects of a hunger strike in general, and a hunger strike by a prisoner or detainee in particular, in terms of the State’s responsibility for him,  the complexity of autonomous will in cases of hunger strikes by prisoners who are willing to die, and where, in any event, the group context may, in some cases, prevent them from ending the hunger strike -- and after all, the purpose is saving their lives – and in terms of the consequences of the hunger strike for national security. Therefore, the arrangement in section 15(2) of the Patient Rights Law does not achieve the purposes of the Law to the same extent, both factually and ethically.

 

130.     And note, as clarified in the Bill’s explanatory notes, it cannot be inferred that one may “skip” attempting to gain the patient’s trust and consent and move straight to forced feeding. Similar to the procedure in the Patient Rights Law, the emphasis is on the attempt to achieve the cooperation of the person on a hunger strike, even for minimal treatment that would only slightly improve his condition. This attempt is based on building a trust relationship between the hunger striking person and the treating doctor. As noted in the Bill:

 

Achieving such cooperation is, of course, the most desirable practice in terms of respecting the prisoner’s autonomy and preserving his liberty, and it is also the most appropriate method of operation from the perspectives of medical ethics (ibid., p. 767).

 

131.     In other words, aside from the general examination of the Law’s provisions, the less harmful means will be examined in the implementation of each case, and to the extent that there is a less harmful means than artificial feeding, and such means may save the life of the hunger striker, the court will refrain from granting an order to provide coercive medical treatment to the prisoner. In addition, even among the options for artificial feeding, the court must explore alternatives according to the level of intrusiveness of the requested procedure and the extent of harm to the dignity of the prisoner (sec. 19N(d)(2) of the Law). Therefore, for example, it is clear that the court will not order intubation when there is a more proportional means for saving that person’s life. As a general rule, as noted in the State’s response, intubation is most exceptional, and the primary means of treating a hunger striker would be providing fluids and nutrients intravenously, as well as providing medication as needed (para. 82 of the response dated Sep. 9, 2015). I would add in this regard that the State notes that in the course of debating and drafting the Bill, the possibility of excluding force-feeding by intubation from the possible medical procedures was considered, but due to the position of the Ministry of Health, which found  the exclusion of a medical procedure in primary legislation to be problematic, it was decided not to do so.

 

132.     In this context, we should address the two cases mentioned above concerning two administrative detainees – Alan and Al-Qiq –which were recently decided by this Court. In those cases, recourse was not made to the Law, although it had already come into force, and the authorities acted in accordance with the Patient Rights Law, with the supervision of this Court, under the circumstances surrounding those cases, regarding which the Court held several hearings (also see and compare HCJ 5464/13 Al-Aziz v. IDF Commander (2013)).

 

Alan, an operative of the  Islamic Jihad terror organization, was placed in administrative detention based on reliable intelligence that linked him to other operatives whose goal was to promote terror in the framework of widespread activity against the security in the area. Alan commenced a hunger strike, due to which he was under medical supervision, first in the Soroka Medical Center in Be’er Sheva, and afterward in the Barzilai Medical Center in Ashkelon. In his petition, he argued that administrative detention is a preventative tool rather than a punitive one and that it was intended to prevent activity against national security. His medical condition due to the hunger strike, albeit self-inflicted, is such that it renders him unable to compromise security, and thus he must be released. We held two hearings on that petition, both in order to evaluate Alan’s medical condition and in order to facilitate negotiations with his attorneys. Prior to the second hearing, we were informed that Alan was experiencing cognitive deterioration. The State’s attorneys declared before us that if Alan’s condition was irreversible, the administrative detention order would be rescinded. The decision handed down on August 19, 2015 stated, inter alia: “It is clear that the petitioner brought his condition upon himself, but this does not preclude making every effort to save his life.” Inasmuch as it was clear that,  due to his medical condition,  Alan no longer presented a security risk, we suspended the administrative detention order that had been issued against him (it later turned out that Alan had not suffered permanent brain damage, thank God) and the hunger strike came to an end.

 

134.     Al-Qiq, a categorical Hamas operative involved in military terrorism, was also placed under an administrative detention order. Shortly thereafter, Al-Qiq went on a hunger strike and refused any treatment. He also petitioned this Court to reverse the administrative detention order issued against him, due to his condition. We held several hearings on this petition, while receiving daily medical briefings as to Al-Qiq’s condition, including the decision of the ethics committee at the HaEmek Medical Center where he was hospitalized, which stated that “due to deterioration in the condition of the petitioner, the medical team should be permitted to provide the patient with treatment without his consent, in order to improve his condition”. On February 4, 2016, we addressed the petition as if an order nisi had been granted, and we ordered the suspension of the administrative detention order, as we found that the petitioner no longer posed a risk that required administrative detention.

 

135.     Thus, in both cases a solution was found that did not require recourse to the Law under review, but remained within the framework of the Patient Rights Law. There is no guarantee, and no one can provide such assurances, that this would be the case in every instance, and we must take into consideration instances of mass strikes as well. In any event, it is presumed that in considering requests submitted under the relevant Law, the courts will bear in mind the possibility for achieving, as far as possible, a balanced, proportional solution that will respond both to the prisoner’s autonomy and to the sanctity of life, and also – as was the case in the matters of Alan and Al-Qiq – to the need to preserve national security. Implementing the Law is, of course, a last resort -- a “doom’s day weapon” of sorts.

 

136.     As for the third test -- the proportionality test stricto sensu -- as noted and as is generally known, this is a value-based test that examines whether there is a proper relationship between the public benefit deriving from the law under review, and the infringement of the constitutional right that will be caused by its implementation (see the Prisons Privatization case, p. 626). It seems that the Law passes this test as well. The Law creates a proportional, balanced arrangement that seeks to minimally infringe the prisoner’s autonomy while protecting his life, through close supervision and monitoring of the process and employing it as a last resort. Let us again recall that the procedure commences with a medical opinion by the treating doctor. The request is then submitted by the Prisons Commissioner, with the approval of the Attorney General or whomever he has appointed on his behalf – as a last resort designed to prevent a risk to the life of a hunger striking prisoner, or the risk that he may suffer severe, irreversible disability – and only after the procedural route is exhausted. Generally, the ethics committee will render its opinion on the matter, the President of the District Court or his Deputy will decide upon the request, and that decision is subject to appeal to this Court. The treatment to be provided would be the minimum required, and the caregiver is not obliged to provide the treatment permitted by the court. As we see – and this should be emphasized – we are concerned with a structured arrangement that involves, alongside the doctors of course, very senior levels of the legal system and judiciary, built in careful stages, and as noted, as a last resort. Based on my great familiarity with these systems, I can confidently say that the determinations in this area will be appropriately thorough. It should also be emphasized that before approaching the court, the treating physician must make a “significant effort” to attempt to persuade the prisoner to grant his consent to treatment. Thus, the physician must explain the legal process and its potential consequences to the prisoner. The court must hear the prisoner, and it is permitted to hold the hearing at the hospital in order to do so. Even when permission is granted for coercive treatment, the caregiver must again attempt to persuade the prisoner to consent to the treatment, and as noted, the treatment provided must be kept to the absolute minimum, and must be done in a manner that will ensure the greatest protection of the prisoner’s dignity, while avoiding, as much as possible, causing pain or suffering. It seems, then, that the gradual, balanced procedure, which is accompanied by medical and legal monitoring and supervision, achieves a proper relationship between the benefit that may derive from the Law, and the potential infringement of the constitutional right due to its implementation.

 

137.     As for the security consideration (sec. 19N(e)), there is no denying that it raises apparent discomfort in regard to the relationship between individual autonomy and broader considerations as specified above. However, as we have explained and again emphasize, since the dominant purpose is saving a life and preserving its sanctity, as part of that universal and especially Jewish ethos in a Jewish and democratic state, we are satisfied that everything possible has been done in order to reduce infringement, and that the presiding judge will ensure this under the concrete circumstances. In the past, I had the opportunity to address the tension between the security needs and human rights:

 

                        The relationship between questions of human rights and the needs and challenges of security will remain on the agenda of Israeli society and Israeli courts for years to come. The peace negotiations that Israel is conducting are ongoing, but even the greatest optimists do not expect that the country will arrive at its safe haven in the foreseeable future. The inherent tension between security and issues of rights will therefore continue, and will find its central legal expression in the interpretation of Basic Law: Human Dignity and Liberty. The discussion of questions such as when rights give way to security, and of the proper balance between protecting existence and preserving humaneness – a sharp contrast that fully reflects the dilemma – will go on. We will continue to deliberate the question of the relationship between the command “For your own sake, therefore, be most careful” (Deut. 4:15) in its collective sense, and “For in His image did God make  man’ (Gen. 9:6) and “Great is human dignity, since it overrides a negative precept of the Torah” (Berachot, 19b). The Court will seek the balance between security and rights so that the name “security” shall not be taken in vain, but neither will security be abandoned (from my article On Basic Law: Human Dignity and Liberty and the Security System,  21 Iyunei Mishpat 21, 22 (5758) (Hebrew) 21, 22; my book Paths of Governance and Law (2003) 226).

 

These words seem as apt today as when they were written eighteen years ago..

 

138.     As noted by the State, the security consideration itself cannot justify commencing a procedure under the Law, and certainly cannot, in and of itself, ground permission to treat a prisoner against his will. The security considerations under the Law can be taken into account only when a treating physician has found that the medical condition of the prisoner is extremely serious and that there is a real risk to his life, or that he may suffer serious, irreversible disability, and that it is for the purposes of saving his life – which is the main purpose of the Law. In any event, the treatment that will actually be provided – if and to the extent provided, according to the caregiver’s discretion (sec. 19P(e) of the Law) – shall be determined according to medical considerations alone (the end of sec. 19P(a) of the Law). I would add, not insignificantly, that the security considerations were originally included in the main provision of the Law, which addresses judicial discretion and the considerations that the court must address (sec. 19N(e) of the Law), as has also been noted. However, ultimately, the role of these considerations was limited such that the court may weigh considerations of national security only when evidence to that effect has been presented, and when there is real concern for serious harm to national security, but all this only after the medical journey, which is primary.

 

139.     We would emphasize that sec. 19N(e) is exceptional, and will  be implemented only very sparingly, in extreme cases in which the State presents evidence indicating a near certainty of serious harm to its security (see and compare other cases where individual rights were weighed against security considerations,  HCJ 9349/10 Anonymous v. Minister of Defense (2011); HCJ 1514/01 Yaakov Gur Aryeh et al. v. Second Television and Radio Authority (2001) [http://versa.cardozo.yu.edu/opinions/gur-aryeh-v-second-television-and-r...). Even in such cases, as noted, this consideration will be an attendant, secondary consideration to the primary purpose of the Law – saving the life of the prisoner for whom treatment is sought, even if against his will.

 

140.     It should further be noted in this context that while raised in our case explicitly, it cannot be ignored that in many instances in which the question of treating a hunger striking prisoner arises, it is in regard to an administrative detainee. These cases raise additional challenges, that, by nature, involve different legal aspects than those arising in the case of a prisoner on hunger strike after conviction and sentencing, because being targeted at prevention, they inherently involve the question of the security risk posed by the detainee, to the extent that he is physically and mentally competent. Under such circumstances, the security considerations may tip the scale toward a solution that obviates the need to force-feed the hunger striking prisoner, which will, as noted, remain a last resort (and see the above cases of Alan and Al-Qiq).

 

141.     Before concluding, I would emphasize that we do not, God forbid, seek to minimize the value and importance of IMA and the moral position it wishes to express in this matter. IMA’s moral objection to the Law that is the subject of these proceedings relies primarily upon the Tokyo Declaration of the World Medical Association (hereinafter: WMA) of 1975, updated in 2006, which provides physicians with guidelines prohibiting their involvement in torture or other cruel, inhuman or degrading punishment in relation to detention and imprisonment. Section 6 of the Tokyo Declaration prohibits the forcible feeding of prisoners on a hunger strike. In December 2007, IMA adopted the Tokyo Declaration and endorsed its latest version in a position paper. IMA also refers to the WMA’s Declaration of Malta of 1991, also updated in 2006, which comprehensively focuses on voluntary hunger strikes, not only by prisoners, and defines principles and guidelines designed to assist physicians in handling the dilemmas that arise when treating those on hunger strikes. The Declaration establishes that forcible nutrition despite informed refusal is unethical, unjustifiable and constitutes degrading, inhuman treatment. The Declaration includes detailed instructions as to how to treat those on hunger strike. The principal parts of the Declaration were endorsed by IMA in 2005, while defining the rules for treating those on hunger strike, including: “a physician will not take part in the forcible feeding of a person on a hunger strike.” The IMA rules were ratified several times, most recently in a hearing of the ethics board in September 2013.

 

142.     However, and without taking these positions lightly -- even if I asked myself where the sanctity of life is in these – they do not represent the current legal state, in Israel or abroad, but rather particular ethical positions. They may derive form cruel practices of countries among which, thank God, we are not counted. Moreover, as the State presented, there are doctors and ethics experts who hold a different position. Thus, the position paper that was presented to this Court (Appendix 9 to the Knesset response of Sept. 9, 2015) states as follows:

 

In extreme situations – when all else has failed, and after every possible effort has been made to secure the consent of the person on hunger strike to end his strike, and when there is real, tangible risk to his life should he continue his hunger strike – the moral value of protecting human life and the ethical-professional duty of the doctor to save his life outweigh the infringement of his autonomous will (ibid., para. 3, emphasis original.)

 

The Law that is the subject of these proceedings is aware of the ethical dispute, and thus explicitly states that it does not “require the caregiver to provide medical treatment to the prisoner on hunger strike” (sec. 19N(e)). As the discussions of the Internal Affairs and Environment Committee on this issue reveal, this subsection was inserted into the final draft, although it was not included in the Government Bill, due to the desire to emphasize  that no doctor is obligated to provide treatment, and this despite the fact that the original language of the Law – in sec. 19N(a) – stated that upon the decision of the District Court, “the physician may provide the prisoner with the above medical treatment…” (minutes of meeting no. 312 of the Internal Affairs and Environment Committee, the 19th Knesset, p. 47-51 (June 17, 2014)). Clearly, the additional emphasis in sec. 19N(e) was designed to give real expression to the above position of some doctors, and to the ethical complexity of the issue.

 

143.     Nevertheless, given our constitutional legal system, and given the state of the law in various countries, as noted, I believe that the position of the World Medical Association, or the position of the Israeli Medical Association, cannot, itself, lead to the striking down of the Law that is the subject of these proceedings, which was enacted by the Israeli Knesset. As then Deputy President Sussman wrote:

 

                        The Petitioner’s argument that he is subject to a moral or medical-ethical obligation under his physician’s oath, or according to the ethics rules of the medical profession, or his medical conscience is irrelevant, with all due respect to those ethical duties – and one who strives to go beyond the letter of the law is praiseworthy. However, we are not concerned here with ethical duties, but rather with legal ones (HCJ 447/72 Dr. Bernardo Yismachovitz v. Aharon Baruch, Income Tax Assessor for Investigations, Tel-Aviv and Center, IsrSC 27(2) 253, 266-67 (1973)).

 

            These words are also apt to the matter before us, mutatis mutandis. Of course, each doctor may look to his conscience and to the physician’s oath and decide as he may.

 

Conclusion

 

144.     Ultimately, the Law passes the constitutionality tests in striking a delicate balance among the different values we have discussed. This is said given the graduated procedure that the Law sets out, which includes several mechanisms for medical, legal and judicial checks. Section 19N(e), whose primary concern is the security purpose, meets the constitutional tests as well, however recourse to it must be very sparing and limited to extreme circumstances, and proper evidentiary foundation. By nature of the issue, this Law is not a source of comfort. There are those who might say that it is possible to “live without it”, assuming other solutions may be found within the existing statutory framework. In any event, having been enacted, we have examined its constitutionality and have reached the above conclusion, being convinced that there may be instances where saving lives demands this, and that the sanctity of life is our highest priority as human beings and as a court.

 

145.     Following the above, I had the opportunity to read the opinion of my colleague Justice Mazuz. His proposal in paragraph 20, in the substantive sense – that is, that the security  issue be considered after the medical deliberation – is not far different from what was stated in my opinion (for example, in para. 138, and particularly at the end). This is also consistent with the order set out in section 19N of the Law, in that subsection (d), which appears first and is dedicated to the medical condition, while and subsection (e), which follows, concerns the security consideration. The best practice is, therefore, discussion of the main issue – the medical one – and only afterward the security issue, as I have written. However, I would clarify that in order not to completely tie the hands of the trial court, I would propose that we establish that the court should begin its deliberation with the medical issue as a basis for determining the case, and that the security issue be addressed last. The court has discretion whether to make an interim decision on the medical issues, which may be appropriate as a general rule, or whether to combine all aspects of the decision together, according to the circumstances of the case, as long as the order detailed above, and the dominance of the medical issue are observed.

 

We therefore do not grant the Petition. There is no order as to costs.

 

 

 

 

Justice M. Mazuz:

1.         I concur with the outcome reached by my colleague Deputy President E. Rubinstein as to the constitutionality of the Amendment to the Prisons Ordinance (Amendment No. 48) Law, 5775-2015, whereby sections 19L-19S were added to the Prisons Ordinance [New Version], 5731-1971 (hereinafter: the “Ordinance Amendment” and “Ordinance”). Still, I am not at ease in regard to section 19N(e) of the Ordinance, which concerns considerations of public peace and safety (hereinafter: the security consideration), and in my opinion it requires clarification and the establishment of boundaries. My colleague discussed the facts, the parties’ arguments, the reasoning and the constitutional argument in detail, and therefore I can present my position briefly.

 

2.         I accept the position of the Knesset and the State authorities that the Patient Rights Law, 5756-1996 (hereinafter: the “Patient Rights Law” or the “Law”) does not fully respond to the complex situations of prisoners on hunger strike who reach a stage where their lives or health are at risk, and that the balance of values and interests established by the Law for the purposes of “providing medical treatment without consent” (sec. 15 of the Law) in regard to an “ordinary” patient” does not exhaust the range of complexities in the circumstances of prisoners on a hunger strike.

 

3.         Section 13 of the Patient Rights Law establishes the general principle, which reflects the right of the individual to personal autonomy, whereby “no medical care shall be given unless and until the patient has given his informed consent to it”.

 

Naturally, a sick person seeks to be cured, and in any event, as a general rule, he is presumed to give consent to medical treatment that may cure him or improve his condition. Cases where the patient refuses treatment are unusual, such as instances where a patient is dying, is experiencing unbearable pain and suffering, and refuses to accept medical treatment that could prolong his life (an issue that is primarily regulated in the Terminally Ill Patient Law, 5766-2005), or other instances where, due to religious or other beliefs, a sick person or patient refuses particular medical treatments (such as amputation of limbs or receiving vaccinations). Therefore, in such circumstances, the Patient Rights Law strikes a delicate balance between the individual’s right to autonomy and the value of the sanctity of life, when the assumption is, as noted, that as a general rule, these two values are not in conflict (this is also the root of the presumption established in sec. 15(2)(c) in regard to retroactive consent, which I will address below).

 

This is not the case for a prisoner on a hunger strike. The hunger striker is not “sick” in the ordinary sense. He is a person who voluntarily and knowingly puts himself in a position where his health is compromised in order to express protest or to exert pressure in order to advance a personal goal or public cause. The hunger striker is not interested, of course, in endangering his health or dying, but he is willing to put his health, and at times even his life, at risk in order to advance his goals. In this sense, he is substantially different from an ordinary patient. The refusal of a hunger striker to receive medical treatment is at the core of his activity, and it is not an unusual or rare situation. In addition, in a case of a hunger strike that is part of a group hunger strike, primarily by prisoners or detainees, it is not always clear whether it indeed reflects the autonomous personal choice of each person on strike, or whether it is a result of  group pressure, or possibly, even coercion. Furthermore, a hunger strike by prisoners and its outcomes have consequences that go beyond the personal matter of the person on a hunger strike.

 

In light of all the above, the complex of considerations and balances in regard to a person on a hunger strike is substantially and substantively different from that which concerns an “ordinary” patient as addressed by the Patient Rights Law.

 

4.         Section 15 of the Patient Rights Law focuses on the exceptions to the general principle that medical care requires informed consent. In this section, the Law permits providing medical treatment in the absence of consent, under particular conditions, in two basic situations: the first concerns cases where it is impossible to secure the patient’s consent because of his medical condition (physical or mental), or because of a medical emergency (paras. (1) and (3)), and the second, which is more relevant to our case, addresses situations where the patient is at serious risk but still “refuses medical treatment”. In cases of refusal of treatment, sec. 15(2) stipulates that a caregiver may provide the medical treatment even against the patient’s will, where the ethics committee – after hearing the patient – authorizes providing the treatment, once it is persuaded that all the following conditions have been met”

 

                        (a) The patient has received information as required to make an informed choice;

(b) The treatment is anticipated to significantly improve the patient’smedical condition;

(c) There are reasonable grounds to suppose that, after receiving treatment, the patient will give his retroactive consent.

 

The condition in paragraph (c) is not simple or obvious. It is an attempt to bridge between the right to personal autonomy and the value of the sanctity of life. Arguably, it is a somewhat artificial bridge, but it is still based, as noted, upon the natural presumption that a sick person wishes to be healed.

 

The provision of sec. 15(2) may then provide a solution in cases where there is no objective, rational reason for the patient’s refusal to accept life-saving treatment, or treatment that may significantly improve his condition, and therefore it may be assumed that, in retrospect, he may come around and give his consent. However, there would appear to be some difficulty in meeting the requirement of paragraph (c) in the case of a hunger striker, whose clear, manifest refusal to accept treatment is at the core of the act of hunger striking, and is designed to prevent frustration of the hunger strike and its purposes.

 

5.         In addition, when a prisoner (including detainee) in State custody is concerned, the State has direct responsibility for protecting his life and health (beginning of sec. 19N(4) of the Ordinance, and see further, section 11 of the Ordinance and section 322 of the Penal Law, 5737-1977). Thus, inter alia, the State provides food and health services to prisoners, and is even obligated to take active steps to prevent suicidal acts by prisoners, or prevent harm to them even against their will (see, for example, Article B.1 of Chapter B of the Ordinance in regard to holding a prisoner in segregation). As we know, Basic Law: Human Dignity and Liberty not only establishes the sanctity of life as one of the basic principles of the Basic Law (sec. 1), but also imposes an active duty upon State authorities to protect the life and body of each person (sect.4). This active duty is of particular weight when a prisoner in State custody is concerned, and the State is directly responsible for his life and his health. Moreover, the State also has a responsibility to protect the security of the prison and to protect the wellbeing of other inmates in the prison, and of course, also has the duty and responsibility to protect the safety and security of the general public, which may be affected by events involving hunger strikes by one group of prisoners or another. The State’s general obligation to preserve public welfare and safety is, of course, heightened when the source of the risk are those who are held in State custody, and are in the State’s charge. As we know, strikes by political prisoners in general, and security prisoners in particular, may also lead to events outside of the prison gates – which are often the purpose of the strike – that could pose a threat to public welfare and safety.

 

All of these considerations distinguish the issue of coercive treatment of a prisoner on hunger strike from the issue of treatment provided to an “ordinary” patient in the absence of consent, and they may justify limiting the prisoner’s right to autonomy in this regard.

 

6.         In light of the above, the arrangement established in sec. 15 of the Patient Rights Law for handling a situation of a patient who refuses treatment, clearly does not adequately address the circumstances of a hunger strike, nor exhaust the complexity of the situation of a hunger strike by prisoners. The constitutional balance underlying the arrangement established by the Patient Rights Law, which attributes dominant weight to individual autonomy, is not necessarily appropriate to the balance required in addressing prisoners in general, or the situation of prisoners on a hunger strike in particular. When we are concerned with a prisoner held in State custody, the element of personal autonomy is weakened (although not negated). On the other side of the equation, alongside the value of the sanctity of life, stand elements of the State’s responsibility for the life and health of the prisoner, as noted, as well as its responsibility for the consequences of the hunger strike for the immediate environment  of the prisoners on hunger strike, and beyond.

 

7.         Moreover, even from the perspective of the infringement on autonomy, when a prisoner on hunger strike is concerned, this is effectively a different type of infringement than in regard to a patient refusing treatment, as the person on hunger strike is not interested, as noted, in dying (even if he may be prepared for this), and in any event the infringement of his autonomy is not in the denial of his ability to exercise his will over his body, but rather is actually focused upon denying him the possibility to go on hunger strike. That is an infringement of his freedom of expression and right to protest, which in any event are limited in regard to prisoners. This Court has already held that a hunger strike:

 

… is not among the rights granted to a person while he is incarcerated in prison. Both elements of a hunger strike – the hunger and the strike – compromise the proper administration  of the prison. As for the first element, the refusal to eat in itself constitutes a prison offense under section 56(8) of the Prisons Ordinance [New Version]. In our case, this is not any ”ordinary” refusal to eat, but rather  a refusal that expresses organized protest in the form of a strike. An organized strike is also inconsistent with maintaining order discipline in prison (HCJ 7837/04 Borgal v. Prison Service, IsrSC 59(3) 97, 102.)

 

I would parenthetically note, that I believe that there is a measure of exaggeration in the general statements (to which my colleague referred to in para. 85 of his opinion) that a prisoner retains all human rights but for the right to freedom of movement and those that derive from it. This is not the place to elaborate, but it seems to me that this is inaccurate both on the abstract level, and certainly on the practical level. The deprivation of freedom of movement is not the purpose of imprisonment, but rather a means for punishing the prisoner. Imprisonment is a penalty imposed upon those convicted, which is generally intended to reflect the principle of retribution (the proportionality principle) for their criminal conduct. Infringing the freedom of movement of a prisoner is, indeed, a result of his sentence and a central characteristic of it, but limiting his freedom of movement does not exhaust the range of penal elements inherent to incarceration, as if it were, house arrest could suffice. A prisoner is subject to no small number of additional restrictions that are not necessarily required by the restriction of his freedom of movement. Indeed, a prison sentence does not itself automatically void the constitutional human rights granted to each person, and certainly not the right to human dignity, with its derivative rights, and the above statements should be seen to some extent as a methodological rule that establishes the point of departure for review (in the absence of explicit legal provisions), whereby a prisoner retains human and civil rights except to the extent that their limitation is a result and necessary consequence of the nature of the prison sentence imposed upon him, and of his status as an inmate in a prison facility run according to necessary disciplinary rules.

 

8.         Under these circumstances, it is easy to understand why the State wishes not to be dependent in realizing its said responsibility – to the life and health of the prisoner, as well as the welfare of the public and its safety – only upon the mechanism of sec. 15(2) of the Patient Rights Law, which was not intended, as noted, to respond to the complex dilemma of treating prisoners on a hunger strike, and cannot always provide a suitable solution. Therefore, there is need for a specific, supplementary arrangement in order to cope with situations for which the mechanism established in the Patient Rights Law falls short. I cannot accept, as noted above, the Petitioners’ argument that the Patient Rights Law fully responds to the relevant situations, nor can I accept their argument that considerations of public safety and welfare are irrelevant to the matter at hand. A central role of the governing authorities, as such, is to protect public safety and welfare, and in this regard we should bear in mind that we are concerned with prisoners whose incarceration is premised upon the purpose of protecting public safety and welfare from them.

 

9.         This, in short, is the general theoretical basis that justifies establishing the supplementary arrangement in the Ordinance Amendment. Moving forward, an examination of the details of the arrangement, and whether and to what extent they meet the constitutionality tests (the Limitations Clause) is required. My colleague the Deputy President discussed the different components of the constitutionality tests and the Limitations Clause in detail, and in general, I concur and see no need for repetition. It should be emphasized that the statutory arrangement that was established was achieved after a long, thorough legislative effort, and it includes a long list of supervisory mechanisms and strict safeguards as prerequisites to granting permission to provide medical treatment (including nutrition) without the consent of the prisoner, and these are their main aspects:

 

a. As a condition for commencing proceedings, a medical opinion as to an immediate risk to the life of the prisoner, or severe, irreversible disability is required, as well as an opinion as to the necessary treatments for preventing such risk.

b. A decision by the Prison Commissioner, with the approval of the Attorney General, as to the need to approach the President of the District Court for permission to provide medical treatment without the prisoner’s consent, is required.

c. A copy of the request to the court, along with the medical opinion, must be submitted to the ethics committee, which is to give its opinion as to the medical issues concerning the prisoner after hearing the prisoner.

d.         The court’s authority to grant permission for providing medical treatment without consent is limited to circumstances where the court finds that without the treatment “there is real possibility that within a short time the prisoner’s life would be at risk, or that he would suffer severe, irreversible disability, and that the medical treatment is expected to improve his condition”.

e. The provisions of the Patient Rights Law continue to apply to the prisoner as long as a decision has not been handed down by the court.

f. The court may grant permission for such treatment only when it is satisfied that significant efforts have been made to secure the prisoner’s consent for treatment, after being given a detailed explanation of his medical condition and consequences of a continued hunger strike for his condition, as well as all the relevant medical information, and the prisoner continued to refuse treatment. And in addition, after receiving the opinion of the ethics committee in the matter, and hearing the prisoner, to the extent it is possible considering his medical condition, or his attorney.

g. The court’s authority is to “permit” medical treatment without the consent of the prisoner, but not to order such treatment.

h. The medical treatment to be provided to the prisoner without his consent must be limited to the necessary minimum for protecting the life of the prisoner or for preventing severe, irreversible disability.

i. Treatment shall be provided “in the manner and location that would ensure maximum protection of the prisoner’s dignity, while avoiding, as much as possible, causing pain or suffering to the prisoner.”

j. The decision of the court is subject to appeal to the Supreme Court, which will consider the appeal within 48 hours of its submission.

 

To these we should add – as noted by my colleague the Deputy President, and as was also made clear by the representatives of the State authorities and the Knesset, in writing and orally – that the arrangement established in the Ordinance Amendment does not replace the Patient Rights Law, but it is a residual, supplementary arrangement, that is, an arrangement that may be implemented only after procedures under the Patient Rights Law have been exhausted, and only where such procedures cannot prevent the risk to a prisoner’s life or health.

 

10.       We thus find that this is a complex procedure, full of strict medical and legal monitoring mechanisms, alongside strict substantive tests. Implementing the established procedure is reserved for extreme cases where other tools have failed, and it is limited to the minimum necessary to save the life of a prisoner at risk due to a hunger strike, or to prevent a severe, irreversible disability.

 

The Security Consideration

11.       As noted, I concur, in general, with the conclusions of my colleague the Deputy President as to the issue of the constitutional analysis of the Ordinance Amendment. As for the security consideration established in section 19N(e), I see some difficulties that must be addressed and clarified,  as explained below.

 

12.       The Ordinance Amendment details, inter alia, the considerations that the court must take into account in granting permission for medical treatment without the consent of the prisoner, all of which concern the medical-health aspect (sec. 19N(d)). Section 19N(e) of the Ordinance adds an additional, optional consideration, as follows:

 

                        (e) The court shall take into account considerations of risk to human life or real concern for serious harm to national security, to the extent that evidence to such effect has been presented to the court.

 

13.       The legislative history of the Amendment clearly shows – and this is not in dispute – that the consideration in regard to the consequences of a prisoners’ hunger strike, primarily security prisoners, for public welfare and safety (the security consideration) was one of the primary considerations that led to initiating the Ordinance Amendment. As I noted above, I accept that the arrangement established in sec. 15 of the Patient Rights Law does not always fully respond to the need for providing treatment without consent in the circumstances of a hunger strike by prisoners, with all its implications, first and foremost in regard to the responsibility and duty to protect the life and physical integrity of a prisoner. Thus, I do not find any flaw in the fact that the security consideration was of the factors that motivated the legislative process of the Ordinance Amendment (and as such I see no reason to refrain from expressing this even in the “purpose clause”).

 

14.       However, once the purpose of creating a legal means for preventing the death or severe, irreversible disability of a prisoner on a hunger strike has been accomplished, there might seem to be no further need for establishing the security consideration as an additional factor for the discretionary stage of the court’s decision as to whether to permit coercive treatment, since the “security” purpose is already achieved as an inevitable secondary result of preventing harm to the health of the prisoner. The purposes of protecting the sanctity of life and guarding public welfare and safety are not contradictory, but rather complimentary in the area with which we are concerned. Since the potential harm to public welfare is a product of the harm to the life of a prisoner on strike, saving the life of the hunger striking prisoner by providing proper care (even coercively) itself responds to the interest of protecting public welfare and safety. Therefore, it might appear that we have no need whatsoever for this consideration as a separate consideration at the stage of the court’s decision as to whether to grant permission for treating a prisoner without his consent.

 

15.       While a “redundant provision” is not constitutional grounds for striking down a statute, it seems that in our case this is not merely a matter of “esthetics”. Including sec. 19N(e) in the manner in which it was included in the statute’s final version, at the stage of the court’s discretion and decision in deciding a request to grant permission to provide medical treatment without consent, may cause the confusion of different issues. It raises questions as to the place and role of this consideration in the court’s decision, and raises concerns as to deviating the decision-making process from the necessary focus on health and medicine to considerations of national security and public order.

 

It should also be noted that although comparative and international law provide support for the approach that permits medical treatment without consent, including forced feeding of prisoners on hunger strike for medical considerations, as detailed by my colleague the Deputy President, there is no precedent, to the best of our knowledge, for including considerations of security and public order as component factor in the discretion for such a decision.

 

16.       According to the early versions of the Bill, as published in the memorandum that was submitted to the Knesset, the security consideration was one among various factors of medicine and of public safety and welfare that the court must take into account before making its decision. Removing the security consideration, in the final version approved by the Knesset, from the general discretion provision (sec. 19N(d)), and placing it in a separate, optional provision (sec. 19N(e)), emphasizes that the court’s decision must be rooted in the medical considerations, whereas the security consideration is but an additional, optional consideration, that should be taken into account only where all the medical-health factors have been met.

 

And indeed, the Respondents accept that under the statute as ultimately enacted by the Knesset, commencing a proceeding of approaching the court in order to obtain permission for treatment without consent must be based solely on medical factors, and that the security factor may never, itself, justify commencing a proceeding. The Respondents also accept that a conditio sine qua non for the court to grant permission is meeting all the health-medical conditions. Thus, the question arises – what, therefore, is the need for the security consideration, and primarily, what role may it fill in the court’s decision?

 

17.       The Petitioners’ attorneys argued that the security consideration is, in effect, the “end all, be all”, and that in practice this consideration is that which tilts the scales, and will come at the expense of the medical considerations, and that the security consideration “will always satisfy the doubt” in the court’s discretion.

 

As opposed to this, the Respondents’ attorneys argued that the security consideration was never designed to outweigh the medical considerations or replace them, and that it may come to the fore “only when all the medical conditions have been met”. But once the court finds that the medical conditions have been met, it may, if evidence to this effect be presented to it, give weight to the security consideration, as a balancing factor to the non-medical considerations grounding the hunger strike, in order to determine the request to grant permission for coercive treatment.

 

18.       It is easy to see that the concern raised by the Petitioners is not enirely unfounded. Establishing the security considerations as a separate consideration that the court must address (“the court shall consider…”), to the extent that relevant evidence has been produced, indeed raises a concern as to the attribution of weight, and perhaps even determinative weight, to considerations of security and public order at the expense of the medical considerations and the right to autonomy, at least in cases where there is doubt or deficiency as to the existence of the medical-health conditions such that they alone do not justify granting permission for coercive treatment.

 

Indeed, the test that was established for taking security considerations into account, according to which it is limited only to cases where evidence was brought before the court as to a “concern from human life or a real concern for serious harm to national security” is a strict test. Yet, there is still the concern that the security consideration may fill the gap where there is doubt or deficiency as to the fulfillment of the medical-health considerations as noted.

 

19.       Under these circumstances, the question arises as to whether these difficulties may compromise the constitutionality of sec. 19N(e) of the Ordinance.

 

After examining the issues, I do not believe that these concerns are sufficient to justify striking down the provision itself. However, such difficulties do, in my opinion, warrant establishing guidelines and restrictions as to the manner of implementation of the provision in regard to the security consideration. This, considering, inter alia, the restraint and caution necessary in judicial review, and in light of the rule that when a statute has several intermingled purposes, judicial review shall focus upon the dominant purpose of the statute, without disregarding the secondary purpose (CA 6821/93 United Mizrachi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49(4) 221, 342 (1995) [http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper... HCJ 4769/95 Menachem v. Minister of Transportation, IsrSC 57(1) 235, 264 (2002)). This is especially so when in our case the security purpose, with its different aspects, is also a legitimate purpose, and when this purpose in itself is not sufficient for commencing proceedings and cannot satisfy granting permission.

 

20.       As noted above, the Respondents also accept that the security consideration, in and of itself, does not justify commencing proceedings for permission, and is certainly not sufficient for granting permission for coercive treatment. This holding – along with the holding, which is also acceptable to the Respondents – that the court may not permit coercive treatment unless the medical and health conditions have been fully met, requires preventing circumstances of conflation and confusion that might color a decision made on the basis of the security consideration, without the medical and health conditions having fully been met.

 

21.       This difficulty, and the concerns that accompany it, which as noted, are not entirely without foundation, may be resolved by a procedural separation between the examination and decision phases as to the fulfillment of the medical and health requirement, and the phase of examining the security consideration, to the extent it may be raised. Accordingly, at the first stage, the court should conduct a hearing on the medical and health conditions – the substantive conditions – that are a conditio sine qua non, and decide whether these are indeed fully met in the case before it. Only having so found, will the court proceed to the second stage, and address the security consideration, to the extent that evidence to this effect has been presented in accordance with the provisions of sec. 19N(e) of the Ordinance. After exhausting both stages, the court will make its final, comprehensive determination upon the request for granting permission for treatment in the absence of consent. In this framework, and on the basis of the above finding that all the medical and health conditions have been met, the court must strike a balance among all of the relevant considerations: on the one hand – the position of the prisoner as to the relevant medical treatment, and as to the purpose of the hunger strike, that is, the right to personal autonomy and to freedom of expression (sec. 19D(d) of the Ordinance); and on the other hand – considerations of protecting the life and health of the prisoner (sec. 19D(d)), as well as the public interest reflected in the security consideration, to the extent evidence to this effect was presented (sec. 19D(e)).

 

At this point, is appropriate that we emphasize that a broad view of the arrangement established in the Ordinance Amendment clearly reveals that the legislature intended to give primary weight to considerations relating to the prisoner – balancing protecting his life and health against his right to personal autonomy and self-expression. Most of the provisions in the arrangement concern these, both in its substantive and procedural aspects, while the security consideration is included solely as a supplementary, optional consideration, strictly limited to cases, backed by evidence, of “concern for human life or a real concern for serious harm to national security”. This approach by the legislature should guide the court in determining a request to grant permission under the Ordinance Amendment.

 

The said a procedural separation, which is designed to ensure the full meeting of the medical and health conditions, and to prevent conflation and confusion between the medical and health conditions and the security condition, is important for purposes of the appeal process as well. Section 19R of the Ordinance establishes that the decision of the court on the request to grant permission is subject to appeal to the Supreme Court, and that this Court “shall hold a hearing in the appeal within 48 hours from the time of its submission”. The need for swift determination is clear, and is required by the nature of the matter. The transparency of the proceedings and the decision that would be achieved by the above procedural separation would also facilitate an expedited decision by the Supreme Court on the appeal.

 

22.       Indeed, it is still possible to wonder if “a trifle is worthy of the King’s trouble” [Esther 7:4], and whether the harm posed by the security section is greater than the benefit derived from it, when the purposes grounding the Ordinance Amendment can seemingly be achieved without it, whereas its existence raises concerns and arguments. However, we are not concerned with review of the wisdom of the legislature, and in light of and subject to the above, it cannot be said that we are concerned with unconstitutionality. However, I believe the relevant State organs would do well to revisit and consider the repeal of sec. 19N(e).

 

23.       In conclusion, subject to my above comments, particularly as stated in para. 21 above, I concur with the conclusion of my colleague the Deputy President that we must deny the Petitions.

 

 

 

 

 

Justice N. Sohlberg:

1.         I concur with my colleague Deputy President, E. Rubinstein’s comprehensive opinion, and my conclusion as to the constitutionality of the Prisons Ordinance (Amendment No. 48) Law, 5775-2015 (hereinafter: the Amendment) is as his.

 

A complex – human, moral and legal – issue was brought before us: the sanctity of life, national security, the right to autonomy, the right to equality, freedom of expression, the State’s responsibility for prisoners in its custody – these are all combined in our issue. As usual, the Deputy President addressed the issue with knowledge, wisdom and reason – considering the importance of each of these considerations for our matter, as well as the delicate balance among them, in accordance with the stages of constitutional review, in a logical, orderly manner. Most of this is  academic rather than practical. In light of our experience with the petitions of hunger striking prisoners and detainees so far, and in view of the monitoring mechanisms, the stages of the procedure and the strict conditions established in the framework of the Amendment, it is both my hope and expectation that we will not reach the stage of forcible feeding in its extreme form, and even the need to address coercive medical treatment of hunger striking prisoners will be  rare, if at all. The primary effect of the Amendment is its clear expression of a value judgment of intrinsic practical benefit.

 

3.         I shall very briefly add a few words as to the proper place and role of the security considerations in sec. 19N(e) of the Amendment. As noted by my colleague Justice M. Mazuz (para. 13 of his opinion), the security consideration was among the primary motives for the enactment of the Amendment. Review of the Bill’s explanatory notes and the minutes of the various discussions along the legislative process leaves no room for doubt in this regard. However, and most importantly, the constitutionality of the Amendment must be reviewed, first and foremost, in light of the specific arrangements it establishes, as they were written into the law books, and these  – as  the Deputy President demonstrated – give priority to the medical considerations. These considerations “overtook” the security considerations along the legislative “journey” and outweighed them. As emphasized by the Respondents, while the medical considerations may justify providing medical treatment to a hunger striking prisoner against his will, even without security considerations, the security considerations, in and of themselves, can never justify granting permission for such medical treatment (para. 138 of the opinion of the Deputy President). This position may lead one to wonder: if the security purpose is indeed secondary to the medical purpose, and is but another layer placed upon it, what then is the benefit that derives from the provision of section 19N(e) of the Amendment? Is “a trifle worthy of the King’s trouble”, as my colleague Justice Mazuz wonders (para. 22 of his opinion)?

 

4.         It is true that, in many instances, protecting a prisoner’s life and realizing the medical purpose would entirely achieve the security purpose, as well. In the matter at hand, the medical purpose and the security purpose are not at odds – indeed, they are sisters and they complement one another (see para. 14 of the opinion of Justice Mazuz). However, there are still situations where the security considerations may be of some significance for the determination of the court. As we may recall, under sec. 19N of the Amendment, the court may permit providing medical treatment. May – but is not obliged. This means that in certain circumstances, in striking the balance between the sanctity of life on one hand, and the right to autonomy on the other, the scales may remain balanced. In other words – even if the State succeeds in showing that without receiving medical treatment there is a real possibility that within a short period of time the prisoner’s life would be at risk, or that he may suffer a severe, irreversible disability, the court still holds a certain margin of discretion in balancing the sanctity of life and the right to autonomy, and determining as its wisdom dictates. Within that margin of discretion, there is also room for considerations of concern for human lives, or a real concern for serious harm to national security, to the extent such evidence has been presented. And note: this does not in any way detract from the State’s duty to withstand the “trials” of the “medical journey” (as the Deputy President described it in para. 138 of his opinion). Only if the state has met its burden to show that the medical considerations have been satisfied, and if the court is still in doubt whether there is justification to permit medical treatment, is there room to consider the security considerations as well.

 

5.         My colleague Justice Mazuz, following the reasoning of the Petitioners, is concerned about attributing excessive weight to the considerations of security and public order at the expense of the medical considerations and the right to autonomy (para. 18 of his opinion). Therefore, he proposes to set restrictions upon the implementation of sec. 19N(e), in the form of a “procedural separation” between the examination of the medical considerations and the examination of the security considerations. I do not share his opinion in this regard, and I concur with the view of the Deputy President that we must take care not to tie the hands of the trail court. Aside from the question of our authority to do this in the framework of these proceedings, I believe that there is no substantive justification for doing so. Once this judgment has made it absolutely clear that the medical considerations are a sine qua non threshold condition without which coercive medical treatment cannot be provided, and that the security consideration is merely an additional layer that may be given expression in a limited spectrum of cases, I see no further need for concern about attributing excessive weight to the security considerations to an extent that would require creating a “procedural separation”. Therefore, I agree with the formula proposed by the Deputy President, whereby the court will begin by examining the medical issue as a basis for its determination, while the security issue will be reserved – if required – as a last issue for examination.

 

Therefore, I concur in the conclusion of the Deputy President that the Petitions must be denied, and with the formula he proposed in paragraph 146 of his opinion.

 

 

 

 

Decided in accordance with the opinion of Deputy President E. Rubinstein.

 

Given this 8th day of Elul 5776 (Sept. 11, 2016).

 

 

Adalah – The Legal Center for Arab Minority Rights in Israel v. Ministry of Social Affairs

Case/docket number: 
HCJ 7245/10
Date Decided: 
Tuesday, June 4, 2013
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

 

We are concerned with petitions for the revocation of Section 61(2)(d) of the Arrangements Law (Legislative Amendments for Implementation of the Economic Plan for 2009 and 2010), 5769-2009, as it is unconstitutional, which included Amendment no. 113 to the National Insurance Law [Consolidated Version], 5755-1995 (hereinafter: the “Amendment to the Law”) that ordered, inter alia, the reduction of the child allowances paid for children who have not received the vaccines required based on their age and health condition and according to the Vaccination Program ordered by the Director General of the Ministry of Health. The vaccination program includes a vaccination by the name of MMRV, which is a “quadrivalent” vaccine against four diseases: measles, mumps, rubella and chicken pox. The vaccination is given to infants at the age of one year, and the program will apply to infants born starting January 1, 2012, such that the first reduction of allowances will be made no earlier than July 1, 2013.

 

The HCJ (per the opinion of Justice Arbel, Justices Hayut and Barak Erez concurring) denied the petitions and held:

 

Justice Arbel held that there is no room for judicial intervention in the legislative process for the Amendment. Justice Arbel reviewed the nature of the child allowance arrangement and its purpose, the approach of the Ministry of Health and medical science towards vaccinations generally, and the quadrivalent vaccination specifically. Justice Arbel believed that the starting point should be that the legislator, in setting child allowances, had in mind the welfare and best interests of the children. Justice Arbel stated that in the framework of the constitutionality of the Amendment, the question of whether constitutional rights established in Basic Law: Human Dignity and Liberty (hereinafter: the “Basic Law”) are violated will be examined, and if the answer is affirmative, it will be examined whether the conditions of the limitation clause of the Basic Law are satisfied. If one of the conditions is not satisfied, the remedy for the unlawful violation will be discussed.

 

Justice Arbel examined whether the Amendment violated rights enshrined in the Basic Law, i.e. the right to a dignified life or the right to social security, the right to autonomy and the right of equality, and held that the Amendment does not violate the right to a dignified life and does not violate the constitutional right to autonomy or to parental autonomy, but does violate the right of equality. It is noted that in this context, Justice Arbel believed that the group of equals included the parents insured through the National Insurance Law. However, Justice Arbel held that the violation satisfies all four conditions of the limitation clause of the Basic Law: the violation of the human right was made in or by a law or by virtue of explicit authorization therein; the violating law befits the values of the State of Israel; the violating law is intended for a proper purpose; the law violates the right to an extent no greater than  required. Justice Arbel held that this violation satisfies all of the conditions of the limitation clause in a manner that strikes a proper balance with other interests and rights, and hence the Amendment is proportionate and there is no room to intervene therein.

 

Justice Barak-Erez also found that the Amendment to the Law violates the right of equality, holding that the petitions should be denied because the violation satisfies the conditions of the limitation clause. Justice Hayut believed that the starting point according to which the question of discrimination should be examined is that the right to the child allowances is a right of the parents, and that this is the relevant group of equals. Unlike Justices Arbel and Barak-Erez, Justice Hayut found that the distinction made by the Amendment to the Law between parents who have vaccinated their children and parents who have refrained from doing so, for the purpose of deducting a fixed amount from the child allowances, does not violate the constitutional right of equality of the parents who chose not to vaccinate their children, and therefore in her opinion too, the petitions should be denied. 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

 

 

In the Supreme Court Sitting as the High Court of Justice

                                                                                                                        HCJ 7245/10

                                                                                                                        HCJ 8357/10

                                                                                                                        HCJ 908/11

 

Before:                                                Her Honor Justice E. Arbel

                                                Her Honor Justice E. Hayut

                                                Her Honor Justice D. Barak-Erez

 

The Petitioner in                     

HCJ 7245/10:                          Adalah – The Legal Center for Arab Minority Rights in Israel

                                   

                                                v.

 

The Respondents:                   1. The Ministry of Social Affairs

                                                2. The National Insurance Institute

                                                3. The Knesset

 

The Petitioner in                      The Israel National Council for the Child

HCJ 8357/10: 

                                                v.

 

The Respondents:                   1. The Israeli Government

                                                2. The Minister of Finance

                                                3. The Attorney General

4. The Minister of Health

5. The Israeli Knesset

6. The National Insurance Institute

 

The Petitioners in                    1. The Association for Information on Vaccines

HCJ 908/11:                            2. Binyamin Brotski

                                                3. Matan Koren

                                                4. Netta Dror

                                                5. Itay Hadar

                                                6. Lilach Rochel                                             

 

                                                v.

 

The Respondents:                   1. The National Insurance Institute

                                                2. Director General, Ministry of Health

                                                3. The Speaker of the Knesset

 

Petitions for an order nisi and an interim order

 

Date of session:                       Tammuz 12, 5772 (July 2, 2012)

 

On behalf of the Petitioner    

in HCJ 7245/10:                      Adv. Z. Zausan, Adv. H. Jabarin

 

On behalf of the Petitioners   

in HCJ 8357/10:                      Adv. V. Windman, Adv. C. Pollack-Cohen

 

On behalf of the Petitioners   

in HCJ 908/11:                        Adv. A. Naveh

 

On behalf of Respondents     

1-2 in HCJ 7245/10 and

Respondents 1-4 and 6

in HCJ 8357/10 and the

Respondents in HCJ 908/11:  Adv. A. Keidar, Adv. M. Freeman

 

On behalf of Respondent 3

in HCJ 7245/10 and

Respondent 5 in HCJ

8357/10:                                  Adv. Dr. G. Bligh

 

 

Judgment

 

Justice E. Arbel:

 

The petitions before us concern the reduction of child allowance for a parent whose children have not received the required vaccines announced by the Director General of the Ministry of Health. In the petitions, the petitioners demand the revocation of Section 61(2)(d) of the Arrangements Law (Legislative Amendments for Implementation of the Economic Plan for 2009 and 2010), 5769-2009 (hereinafter, the “Arrangements Law” or the “Law”), on the grounds that it is unconstitutional.

 

The Arrangements Law

1.The Arrangements Law, which was enacted in 2009, included Amendment no. 113 (hereinafter, the “Amendment”) to the National Insurance Law [Consolidated Version], 5755-1995 (hereinafter, the “National Insurance Law”). The Amendment mainly concerns the gradual increase of the child allowances paid for the second, third and fourth child in a family unit. Concurrently, the Amendment orders the reduction of the child allowances paid for children who have not received the required vaccines based on their age and health condition and according to the Vaccination Program ordered by the Director General of the Ministry of Health. The main part of this arrangement is currently set out in Section 68(d) of the National Insurance Law:

(d)(1) If the child meets the provisions of Paragraph (2), the monthly child allowance paid for him will be reduced by the sum of NIS 100 (in this section – the “Sum of the Reduction”), provided that notice was given as stated in Subsection (e) and the 14-day period has passed as stated in the said subsection from the date of service of the notice according to the provisions of Subsection (h)(2); the reduction will begin on the 1st of the month following delivery of the notice to the Institute as stated in Paragraph (2);

(2) The Ministry of Health shall notify the Institute that six months have passed from the date on which the child was required to receive the vaccines based on his age and health condition and according to the Vaccination Program ordered by the Director General of the Ministry of Health; such notice shall be sent to the Institute no later than seven days after the date on which six months have passed as aforesaid;

(3) A program as stated in Paragraph (2) will be published in the Israel Official Gazette and shall include provisions regarding the type of vaccine, the vaccination schedule, additional dates on which a vaccine that was not administered on the required date may be supplemented, and the maximum age at which each vaccine may be administered (in this section, the “Vaccination Program”).

It should be noted that additional sections in this arrangement include: instructions regarding the notice that must be sent to parents whose children have not received vaccines as aforesaid, options to challenge and appeal decisions on the matter, sums of allowance reductions according to the number of children in the family, recalculation of the allowance after the child has been vaccinated as required or after the passage of the last date on which the vaccine, because of which the allowance was reduced, could be administered, etc.

2.Publication of the Vaccination Program by the Director General of the Ministry of Health was initially postponed because claims were raised regarding lack of access to Family Health Centers (“Tipat Chalav”) by the Bedouin population in the Negev, such that in practice the Amendment could not be implemented. After actions were taken to increase access and awareness among the Bedouin population in the Negev, the Director General of the Ministry of Health published a vaccination program by virtue of the Law, which included one vaccine named MMRV, a “quadrivalent” vaccine against four diseases: measles, mumps, rubella and varicella. The vaccine is given to infants at the age of one year and the program applies to infants born starting January 1, 2012, such that the first reduction of allowance will be made no earlier than July 1, 2013.

The petitions at bar were filed against this arrangement.

HCJ 7245/10 –Petitioners’ Claims

3.The petitioners are organizations and associations that act to promote Arab and Bedouin minority rights, as well as residents and chairpersons of local committees of three Bedouin villages in the Negev, in which, on the date this petition was filed, no Family Health Center operated.

4.First, the petitioners claim that the Amendment was passed following a coalition agreement, and that prior to its approval no discussion was held in respect thereof. They also argue the respondents did not base the approval of the Amendment on any analysis or research. Second, the petitioners claim that the Amendment violates the children’s constitutional rights. According to them, the child allowance belongs to the children themselves, even though it is remitted to their parents. The court has emphasized on various occasions the importance and objective of the child allowances is for the children’s welfare. The conclusion, therefore, according to the petitioners, is that reduction of the allowances harms the children and violates their rights, mainly children belonging to poor families that will be forced to waive monetary expenses necessary for the upbringing and development of the children. It is argued that the Amendment violates the supreme principle of the best interest of the child, which has been established in the case law of the Supreme Court and in international treaties. The petitioners further claim that the Amendment violates the principle of equality between children, as it creates an irrelevant distinction between children who have received vaccines and those who have not received vaccines, and between children whose parents have access to preventive medical services and children for whom the State has not ensured access to such services. They further claim that the Amendment violates the children’s constitutional right to the property, since the allowances belong to them. They claim that the very payment of the insurance contributions to the National Insurance Institute create a contractual agreement between the parent and the National Insurance Institute, which includes the expectation of payment of child allowances against payment of the insurance contributions by the parent. Violating this expectation, it is claimed, is also contrary to

5.According to the petitioners, the violation of the aforementioned constitutional rights does not satisfy the conditions of the limitation clause. The violation, it is argued, is not for a proper purpose. The violation was made without examination and without an appropriate foundation; it aggravates poverty and socioeconomic gaps; and it also harms the public interest that mandates protecting and avoiding harm to those children who are not being vaccinated.

6.It is further asserted that the violation does not satisfy the threefold proportionality test. The violation does not satisfy the rational connection test, since the means chosen do not achieve the objective of protecting the child’s health and public health. According to the petitioners, the Amendment in fact harms the child’s wellbeing, health, development, property and right to social security, and causes a deepening of poverty. It is asserted that punitive use of the allowances is prohibited, and that the allowances should not be used to combat various negative or wrongful phenomena. The Amendment punishes the children for non-receipt of vaccination services.

The petitioners further claim that the violation does not meet the second proportionality test, the less harmful means test. According to them, other appropriate means could have been adopted to achieve the goal, such as making preventive health services accessible in the unrecognized villages in the Negev. The petitioners assert that the main population that will be harmed by the Amendment is the children residing in the Bedouin villages, including the children of the unrecognized villages. According to them, the high rate of unvaccinated Bedouin children is the product of the State’s failure to provide preventive health services at Family Health Centers. The Bedouin children’s access to these services is limited. In approximately forty-five unrecognized villages there are, it is argued, only twelve Family Health Centers, and even those were only put in place after a petition to the HCJ, and some are under threat of closure. The petitioners add that the residents of these villages also have limited mobility due to the absence of driving licenses and suitable public transportation in the area, and that they have low socioeconomic status and a very high rate of poverty. The Amendment therefore punishes the Bedouin children through no fault of their own, and due to the Ministry of Health’s failure to fulfill its obligation to realize these children’s rights from the outset. This punishment will further aggravate the socioeconomic status of the Bedouin children, and deepen the social gaps between this population and the general population. The petitioners assert that despite the neutral language of the Amendment, the said data reveal that, de facto, it discriminates against the Bedouin children on the basis of nationality.

Finally, the petitioners claim that the violation also fails to fulfill the narrow proportionality test. According to them, democracy cannot justify punishing children because they have not been vaccinated by their parents. The Amendment leads to a result opposite to that sought by the legislature and, instead of protecting the children’s health, causes them additional harm.

7.In supplementary pleadings filed by the petitioners on August 16, 2012, the petitioners seek to emphasize the claim that the violation of rights should be examined in light of the fact that the matter concerns children, a group with special characteristics which mandate special constitutional protection. According to them, this fact distinguishes between a regular violation of the right of equality, which may be a permitted distinction, and a violation which falls under the definition of prohibited discrimination, i.e. violation of the constitutional right.

HCJ 8357/10 – The Petitioner’s Claims

8.The petitioner in HCJ 8357/10 is the Israel National Council for the Child. It too asserts that the Amendment constitutes a violation of the equality between children whose parents vaccinated them and children who have not been vaccinated for whatever reason. According to the petitioner, this is not a distinction that is relevant to the purpose of the legislation. The purpose of the child allowance arrangement, it is argued, is to allow a redistribution of income among the population, transferring income from citizens who have no children to those who have children and whose income needs to be divided between a greater number of persons. According to the petitioner, the allowance is not a prize for desired behavior, and conditioning the allowance on a condition unrelated to the size of the family is wrongful ab initio. The petitioner claims that the case does not concern denial of a benefit given to parents for vaccinating their children, as the State claims, since the allowance increment granted in the Amendment does not apply to the first child or the fifth and any subsequent children. The Amendment may also harm populations that are already weakened, who do not vaccinate their children due to lack of access to Family Health Centers or due to the absence of time and financial resources. The petitioner emphasizes that the rate of unvaccinated children is particularly high in the unrecognized settlements in the Negev as a result of a lack of physical, cultural and linguistic access to vaccination services. The petitioner further claims an additional violation of the right to social security which will bring more children into the cycle of poverty and deepen penury among families already below the poverty line, contrary to the objective of the child allowances, particularly with respect to the first child and the fifth child onwards in the family.

9.The petitioner argues that the violation of the constitutional rights of the children does not satisfy the conditions of the limitation clause. The objective of increasing the vaccination rate is foreign to the purpose of the allowances, and therefore is not a proper purpose. Introducing this consideration will create a dangerous precedent whereby allowances may be reduced for any health, educational or social reason. The proportionality test is also not satisfied according to the petitioner. When the reasons for non-vaccination are ideological or depend on access to health services, it is clear that the reduction of the allowances will not affect vaccination. Therefore, the means are inconsistent with the purpose. The lack of consistency, it is claimed, stands out against the background of the data regarding the high rate of vaccination in the State of Israel, mainly with respect to the vaccinations currently required by the Vaccination Program published in accordance with the Amendment. The petitioner makes a distinction between a benefit, the conditioning of which on vaccination may be proportionate, and the imposition of a sanction for failure to vaccinate which is not proportionate. The petitioner rejects the State’s claims regarding the measures taken in order to moderate the harm. It further claims that there are many and varied measures for achieving the goals reflected in the Amendment that do not violate the children’s rights and have a greater benefit potential. Thus, it is possible to act to increase awareness and improve access to child vaccination services.

HCJ 908/11 – The Petitioners’ Claims

10.The petitioners in HCJ 908/11 are the Association for Information on Vaccines and parents whose children they argue suffered various negative reactions following a vaccination. The petitioners claim that there are differences of opinion in the medical community and among the public regarding the effectiveness of vaccines and the severity of their side effects. Hence, they believe that parents should be allowed the right to choose whether or not to vaccinate their children. According to them, the fact that there is a law aimed at compensating those injured by vaccines proves that vaccines are not risk-free. The petitioners further assert that the Amendment violates the right to equality, the individual’s right to autonomy and the right to autonomy of parents in the upbringing of their children. The petitioners challenge the Amendment legislation procedure and its inclusion in the Arrangements Law, which does not allow the issue to be thoroughly discussed and examined. Similar to the other petitions, these petitioners claim that the violation does not satisfy the conditions of the Limitation Clause.

The Respondents’ Claims

11.Respondents 1-5 the legislative proceedings, which began at the initiative of the Director General of the Ministry of Health, and included preparation and examination of the data in Israel and worldwide. A separate legislative memorandum was subsequently circulated, unlike the regular procedure for enactment of the Arrangements Law, in order to allow specific examination of the matter. The memorandum was discussed both at the various government ministries and at the Finance Committee of the Knesset, and conflicting positions were heard. The respondents note that it was decided to stop collecting the Family Health Centers’ fees in order not to create an economic barrier to vaccination. The respondents further specified the actions that were performed by the ministries for the implementation of the Law, including increasing access to Family Health Centers and increasing awareness of the Amendment to the National Insurance Law.

12.The respondents emphasize the importance of the MMRV vaccine and the severity of the diseases against which it immunizes. According to them, the vaccine is intended to combat diseases that can cause severe harm to public health, and particularly to the health of children. In addition, these diseases are highly contagious. The respondents stress that according to professional opinion, in order to reach “herd immunity”, which protects even those who cannot be immunized or who have not developed resistance despite having received the vaccine, the immunization coverage required in the population is approximately 95%. The respondents further state the importance of immunization coverage to each individual child, relative to both the child population and the general population. They also note the expected economic and social repercussions for the State due to the absence of effective prevention of disease outbreak.

13.The respondents maintain that the default is that the Court will not be inclined to intervene in socioeconomic policy established in primary legislation of the Knesset. The respondents further claim that the legislative procedure was duly carried out and does not create cause for the Court’s intervention. The respondents also assert that the Amendment does not violate constitutional rights. With respect to violation of the children’s rights, the respondents contend that the allowance is not a direct right of the child, but rather the right of the parents, intended to help them support the family unit. It is argued that the fact that the amount of the child allowance depends on the birth order of the child in the family supports this conclusion. In addition, on the practical level, it is the parents who decide on the use of the allowance, and they are not obligated to use it for purposes pertaining directly to the children. According to the respondents, even if the allowance did belong to the children, there is no case law establishing a property right for recipients of the allowances. 

14.According to the respondents, the Amendment does not violate the constitutional right to minimal dignified existence. According to the respondents, there is no room for the assumption that any change in the allowance’s entitlement rate constitutes a violation of a constitutional right. They refer to case law that determines that the array of social rights does not necessarily reflect the bounds of the right to social security at the constitutional level. Moreover, the case at bar concerns the reduction of an allowance that for the most part corresponds to the allowance increment that was granted in the Amendment, and therefore there is no ground for the assertion that the Amendment will violate the right to minimal dignified existence. With respect to the violation of equality, the respondents claim that the Amendment establishes an egalitarian norm which seeks to incentivize individuals to take action that is highly desirable from a social and health perspective, and it cannot be said that it constitutes a discriminatory norm. Every parent is able to ensure that his child is vaccinated, and in such a case, the child allowance will not be reduced. In any event, it is argued that there is no violation of equality at the constitutional level—that is, a violation that is closely and pertinently related to aspects of human dignity as a constitutional right. As for the assertion of consequential discrimination on the basis of nationality, the respondents claim that the data indicate a similar rate of vaccination in the Jewish sector and in the Arab sector, while in the Arab sector there is a slightly lower rate of vaccination than in the Bedouin sector. The respondents admit that the percentage of vaccination in the unrecognized villages in the Negev is lower, but believe that the current level of access to Family Health Centers in these settlements, after various actions have and are being taken, is reasonable and appropriate. Finally, the respondents assert that the Amendment does not violate the constitutional rights to autonomy and to parenthood. They state that the professional position of the Ministry of Health, which is based on the prevailing approach in the medical world, is that vaccines are a desirable, efficient and safe method of preventing morbidity. They claim that the fact that there is a professional dispute on the matter does not provide grounds for the Court’s intervention in primary legislation. They further argue that the law does not force parents to vaccinate their children, but merely creates an economic incentive to vaccinate. In any event, it is argued that there is no violation whose severity rises to the level of a violation of a constitutional right. The respondents believe that the Amendment promotes other aspects of human dignity, leaving no basis to determine that the bottom line is injurious.

15.Alternatively, the respondents assert that even if it is determined that a constitutional right is being violated, the violation is lawful and satisfies the conditions of the Limitation Clause. They state that the purpose of the Amendment is protection of children while ensuring their health and welfare and caring for public health in general. This, they claim, is a proper purpose the values of the State of Israel. They further claim that the purpose is not foreign and extraneous to the National Insurance Law. They also assert that the Amendment satisfies the three proportionality tests. Experience in other countries establishes the effective connection between economic incentives and the conduct of parents with respect to their children, including increasing vaccination rates. Regarding the less harmful means test, the respondents admit that other alternatives exist to incentivize the vaccination of children. However, they claim that the means chosen by the legislator do not exceed the bounds of proportionate measures. They add that the State may intervene in arrangements and regulation of conduct where there is a public good that creates a “market failure” in the actions of citizens, each of whom is relying on the immunization of the other. Finally, they claim that the proportionality requirement in its narrow sense is fulfilled, in view of the clear public interest in vaccinating children and maintaining a high vaccination rate on the one hand, and considering that the harm is limited and proportionate, taking into account the conditions and limitations set forth in the legislation regarding reduction of the allowance, on the other hand.

16.The respondents refer in detail to the issue of the repercussions of the Amendment on children in the Bedouin diaspora. They argue that following actions taken on behalf of the respondents, there is currently reasonable and adequate access of the Bedouin population to Family Health Centers. In addition, they state that the MMRV vaccination rate in the Bedouin population registered at Family Health Centers is higher than the MMRV vaccination rate in the Jewish sector.

17.Respondent 6, the Knesset, rejects the petitioners’ claims and joins the position and reasoning of Respondents 1-5.

Deliberation and Decision

Claims Pertaining to the Legislative Process

18.The petitioners raise claims concerning the enactment of the Amendment in the framework of the Arrangements Law in expedited legislative proceedings, and argue that the Amendment was born out of a coalition agreement without comprehensive ground work. These claims should be dismissed. As detailed by the respondents in their response, the Amendment emerged following the request of the Director General of the Ministry of Health in 2008, Prof. Avi Israeli, to the Ministry of Finance, in which he requested to examine the possibility of conditioning child allowances on various acts, including vaccination of children. In 2009, the issue was also introduced into the coalition agreements, but there is nothing wrong with that in itself. Following the request of the Ministry of Health, the Ministry of Finance carried out a review of similar arrangements around the world, as well as examined the vaccination data in Israel. The resulting position paper stated that the use of allowance conditioning around the world to increase school attendance and the use of preventive medicine has been proven to be effective. It further indicated that there is a phenomenon in Israel of not vaccinating infants, contrary to the Ministry of Health’s recommendation. An outbreak of tuberculosis in Israel in 2008 was mentioned, and it was emphasized that the Ministry of Health has no effective means to handle the said problem. The position paper proposed a model whereby receipt of child allowance would be conditioned upon regular attendance at an educational institution and receipt of the vaccines required by the child’s age and health condition. As part of the discussions in preparation for the Arrangements Law, several discussions regarding this proposal were held at the relevant ministries as well as before the Attorney General. In the course of these discussions, several changes were made to the model proposed by the Ministry of Finance. Later, a Government Resolution was made generally adopting the proposed model with certain changes, primarily the reduction in child allowances, rather than their denial, and the establishment of caps for the reduction in each family.

19.Following the Government Resolution, and contrary to the regular procedure in the framework of the Arrangements Law, the Ministry of Finance circulated a separate legislative memorandum in order to allow continued examination and detailed discussion on the issue. The memorandum was examined by various entities at the ministries, and the Ministry of Justice also forwarded its comments regarding the memorandum. In addition, the Finance Committee of the Knesset held a discussion on the memorandum and examined the arrangement established therein. Prior to the discussion, the committee members received an analysis on the matter prepared by the Knesset Research and Information Center, which also included positions opposing the proposed arrangement. Many entities from the various ministries and from the National Insurance Institute were present at the Committee’s discussion on June 24, 2009, as well as representatives of the Israel National Council for the Child, one of the petitioners at bar. The vaccination data in the various sectors in the State of Israel were presented to the members. On July 7, 2009, another discussion was held at the Finance Committee, and its members were informed of the removal of the condition of regular attendance at an educational institution. Finally, the Finance Committee approved the bill for a second and third reading. The law in its final version was approved by the Knesset on July 14, 2009 after a discussion that included specific reference to the issue at bar (see the Knesset minutes of July 13, 2009, available at http://www.knesset.gov.il/plenum/data/02626209.doc#_Toc258334465).

20.In order to examine the petitioners’ claims regarding the legislative proceedings described above, it is necessary to mention the case law that held that intervention of this Court in parliamentary proceedings will be limited to cases in which “the legislative process causes deep harm to material values of the constitutional regime[.]” (HCJ 6784/06 Shlitner v. The Pensions Commissioner, Paragraph 36 of the opinion of Justice Procaccia (January 12, 2011)). The test that was set out is “whether the defect in the legislative proceeding goes to the root of the proceeding, and whether it harms basic values of the constitutional regime.” (Id). It was further held that an expedited legislative proceeding, such as the Arrangements Law, does not, in itself, lead to the striking down of the law. Even in such a case, the Court will examine whether there was a defect that goes to the root of the proceeding to an extent that justifies judicial intervention, and the consequence of such a defect in accordance with the severability model. (HCJ 4885/03 The Poultry Breeders in Israel Organization Agricultural Cooperative Society Ltd. v. The Israeli Government [2004] IsrSC 59(2) 14, 42 (hereinafter, “The Poultry Breeders Organization Case”); HCJ 3106/04 The Association for Civil Rights in Israel v. The Knesset [2005] IsrSC 59(5) 567). It was further held that “even if it were proven that the legislative procedure prevented the holding of an in-depth and exhaustive discussion and impaired the ability of Knesset members to formulate a well-established position with respect to each one of the issues included in the bill, this is not enough to justify judicial intervention.” (The Poultry Breeders Organization Case, on p. 50).

21.In the case at bar, there is no room for judicial intervention in the legislative proceedings of the Amendment. Contrary to the practice with the Arrangements Law, a separate legislative memorandum was circulated on the issue in question to the various ministries for their comments. In addition, as can be seen from the chain of events reviewed above, the issue was discussed and examined by various entities; various positions were heard, a report of the Knesset Research and Information Center was prepared and data were presented regarding the success of similar arrangements around the world. In the course of the discussions, the bill was modified, narrowed, and arrangements were added in order to reduce the harm to the entitled population. The issue was also raised in the discussion at the Knesset, and objections by various Knesset Members were heard regarding conditioning the child allowances on the vaccination of children. Indeed, there may have been room for a more in-depth discussion with a broader foundation. However, this is not a defect that goes to the root of the proceeding, and therefore there is no room for the Court’s intervention based on a defect in the legislative proceeding. (See and compare HCJ 494/03 Physicians for Human Rights – Israel v. The Minister of Finance [2004[ IsrSC 59(3) 322, 330 (hereinafter, “PHR Case”)).

Regarding the Content of the Legislation

22.Before examining the constitutionality of the Amendment, we must first state the essence and purpose of the child allowance arrangement. I will then review the standpoint of the Ministry of Health and medical science on vaccines in general, and specifically on the MMRV vaccine. These reviews will lay the foundation for examining the constitutionality of the Amendment to the National Insurance Law. As part of this examination, I will examine the question, as customary, of whether constitutional rights established in Basic Law:

 

Child Allowance – the Arrangement and its Purpose

23.

24.Johnny Gal Taub Center  Social Policy Dan BenDavidEditor, 2010) (hereinafter, “Gal”); HCJFH 4601/95 Serossi v. The National Labor Court [1998) IsrLC 52(4), 817, 831; HCJ 6304/09 Lahav, The Umbrella Organization for Independent Businesspeople v. The Attorney General, Paragraphs 43-44 (September 2, 2010) (hereinafter, “Lahav Case”)). The social insurance system is supposed to ensure minimal dignified existence for all of its residents and to protect their standard of living. The system is based on the principle of social solidarity and mutual assistance. (LCA 7678/98 The Payment Officer v. Doctori [2005] IsrSC 60(1) 489, 525; Lahav Case, Paragraphs 44, 58). The purpose of the child allowances is to help families with children to bear the increasing costs of raising children. In fact, the child allowances to equalize the state of different-sized families whose level of income are equal. In addition, they help families not to fall below the poverty line due to the added expenses of having children, and protect the family against exposure to the social risk of a decline in the standard of living created as a result of expansion of the family. (Abraham Doron “The Erosion of the Israeli Welfare State in 2000-2003: The Case of Children Allowances”, Labor, Society and Law, 11 95, 106 (5766); Gal, on p. 254; Ruth Ben-Israel “Family and Social Security: From A Traditional Division of Labor to a New Division”, Menashe Shava’s book, 207, 215-216 (Aharon Barak & Daniel Friedmann eds., 2006)). Understandably, these allowances affect the welfare of the child in the family, and therefore one of the purposes of the allowance is to further the best interests of the child and caring for the children’s welfare. (NIA /04 Azulay v. The National Insurance Institute, the opinion of Deputy President E. Barak-Ussoskin (November 2, 2006) (hereinafter, “Azulay Case”); HCJ 1384/04 Betzedek – The American-Israeli Center for the Promotion of Justice in Israel v. The Minister of the Interior [2005] IsrSC 59(6) 397, 408 (hereinafter, “Betzedek Center Case”)).

25.The Competent Authority under the Invalids (Nazi Persecution) Law 5717-1957 [1978] IsrSC 32(3) 408 (hereinafter, “Sin Case”), Justice C. Cohen holds that the child allowances are not income of the insured parents, but rather escrow funds the mother is entrusted with to spend for the welfare of her children. Certainly, it was held, it is not income of the father, who does not receive the money, neither into his possession nor for his enjoyment. The Court added that “the legislator’s intention in allocating an allowance to children would be entirely thwarted and frustrated if the children’s allowance was deemed as income of their parents, and all types of authorities would be able to get a hold thereof and take it from the mouths of the children in order to collect payment from their parents.” (Sin Case, on p. 411; see also LCA 3101/00 Betiashvili v. The Competent Authority [2002] IsrLC 57(1) 183). Indeed, a ruling of the National Labor Court held that the person who is entitled to the child allowance is the insured parent and not the child directly, and that the parent does not hold the money in trust for his child in the legal sense. (Azulay Case, Paragraphs 4-5 of the opinion of Justice V. Wirth Livne). However, this Court has not ruled on the issue, and the petition filed on the opinion in the Azulay Case was dismissed in limine because it was theoretical, and did not state a position on the merits of the issue. (HCJ 967/07 Jane Doe v. The National Insurance Institute (April 29, 2007)). In addition, it should be noted that in the Azulay Case, a minority opinion was voiced by Deputy President E. Barak-Ussoskin. This position, which was based, inter alia, on the said judgments of this Court, asserted that the right to child allowance is granted to the child and not to the parent, and that the parent receives the allowance in trust in order to care for the welfare of the child.

In any event, I do not believe that we are required to decide this issue, but we should rather assume that the legislator, when determining the child allowances, had in mind the welfare and best interests of the children.

The Vaccination Program

26.The issue at bar mainly concerns the conditioning of part of the child allowance on vaccinating the child for whom the allowance is paid. Therefore, the purpose of the Vaccination Program in Israel should be briefly stated. As the respondents clarified, the professional position of the Ministry of Health is that vaccines are a means of utmost importance for protection of the health of children and of the general public. The vaccine system currently in place protects the population in general and children in particular from serious morbidity. The importance of the vaccines is not expressed merely in vaccinating children, but also in ensuring the vaccine is timely given, in accordance with the recommendations of the Ministry of Health. This was addressed in the past by Deputy President E. Rivlin:

“There is no doubt that compliance with the vaccination dates is of great importance, and it is the duty of the persons charged with it to ensure and verify that there is no unjustified delay in vaccinating infants. The schedule set for vaccinating infants was set for good reason, and it obviously must be adhered to with the utmost attention and the strictness required in such a matter.” (CA 9628/07 Shalom v. Clalit Health Services, Paragraph 6 (September 2, 2009)).

27.The Ministry of Health deems the vaccination of children to be of great importance on two levels: the first level concerns the protection of the health of the individual child receiving the vaccine. The respondents state that a vaccine is the only way to ensure protection of the individual from the diseases against which the children are vaccinated. They explain that in a world that has become a type of “global village,” there is a risk that any immigrant or tourist will bring with him diseases that are not currently found in Israel, and which may infect those who are not immunized against such diseases. The second level concerns what is termed “herd immunity.” Herd immunity protects individuals in the public who have not been vaccinated for justified reasons, such as newborn babies who have yet to reach the age in which the vaccine is administered, the elderly person whose immune system is not functioning properly, or other persons at risk with respect to their immune systems, such as people suffering from serious illnesses or undergoing chemotherapy. In addition, herd immunity protects the small percentages of individuals who were vaccinated but are not reacting to the vaccine. Herd immunity is only achieved when there is a high coverage rate of vaccinated individuals in society and so long it is maintained.

Herd immunity creates a unique characteristic with respect to the issue of children’s vaccination, since the individual decision of each parent as to whether or not to vaccinate his children has an effect on the entire public. In addition, a “free rider” problem may develop in this regard, whereby a parent will choose not to vaccinate his children on the assumption that herd immunity will protect them from the diseases against which the vaccines protect. A wide-scale phenomenon of free riders could harm the herd immunity and thus harm the general public.

28.It appears that the majority of the petitioners also recognize the importance of vaccines and their significant contribution to public health; the main dispute is about what measures should be taken in order to encourage the vaccination of children. However, the petitioners in HCJ 908/11 challenge this starting point, arguing that the effectiveness of vaccines and the severity of their side effects are in dispute. It appears to me that this position cannot change the said starting point. It seems that the position of the Ministry of Health regarding the importance of vaccines is a prevalent and very common position in Israel and around the world. (See e.g. Avraham Sahar “Opportunity Makes the Thief...” Beliefs, Science and the Vaccine Victims’ Insurance Law, 5750-1989” Medicine and Law 36 on p. 105 (2007) (hereinafter, “Sahar”); Bilhah Kahana “The Vaccine Victims’ Insurance Law – A Law that is Not Enforced” Medicine and Law 38 on p. 14 (2008)). Insofar as we are aware, to date no causal link has been scientifically proven between vaccines and neurological or other damages. However, medical science recognizes that vaccines, or to be precise, the fever caused in some children as a result of vaccination, can create a risk and cause damage to a very small percentage of children with a certain genetic predisposition who receive a vaccine. Nonetheless, it is unclear whether, even if the vaccine had not been given, damage could have been caused as a result of another fever-inducing disease. (See Tali Sagi “Comments on the Article “Opportunity Makes the Thief - Beliefs, Science and the Vaccine Victims’ Insurance Law”” Medicine and Law 36 on p. 116 (2007)). In addition, there is broad consensus that even if there is a certain risk, it is very small, and that the benefit resulting from the vaccine is much greater:

“The risk entailed in receiving the vaccine, even though it does in principle exist, is very distant and rare, while the benefit and necessity of the vaccine to the health of the child are not doubted” (CA 470/87 Eltori v. The State of Israel – The Ministry of Health [1993] IsrSC 47(4) 146, 153).

Examples from Israel and around the world can illustrate this risk. When the public immunization level declines, usually due to fears raised by vaccine opponents, there are reports of outbreaks of epidemics which were ostensibly extinct, causing severe injuries. This was the case in Britain after the rate of persons immunized against pertussis dropped to approximately 30% in early 1980; a pertussis epidemic broke out leading to the hospitalization of approximately 5,000 children and the death of twenty-eight children (Sahar, on p. 106). In Israel, an outbreak of measles occurred in 2003 among a population that did not habitually vaccinate. Within two weeks, sixty children fell ill, out of whom one child passed away from the disease. Another outbreak occurred in 2007-2008 after a sick tourist arrived from England. The disease spread among a non-immunized population and within several months 1,452 cases of measles were reported.

29.It should further be noted that the case law holds that the administrative authority, and certainly the legislative authority, may rely on expert opinion, even if there is a contradicting opinion, and the court will honor the authority’s decision between the contradicting opinions. “When a law is based on a matter within professional expertise, the fact that there are contradicting opinions on such issue does not justify striking it down.” (HCJ 6976/04 The “Let the Animals Live” Association v. The Minister of Agriculture and Rural Development, Paragraph 11 (September 1, 2005) (hereinafter, “LAL Case”); see also HCJ 1554/95 Gilat Supporters v. The Minister of Education and Culture [1996] IsrSC 50(3) 2, 19; HCJ 4769/95 Menachem v. The Minister of Transport [2002] 57(1) 235, 271 (hereinafter, “Menachem Case”)). Understandably, had there been a well-established and prevalent position among medical experts believing that the risks from the vaccines exceed the benefit, it would have affected the constitutional analysis of the Amendment being examined before us. However, this is not the factual situation. As I stated, the prevalent and recognized position worldwide is that the benefit derived from the vaccines immeasurably exceeds the risk inherent therein. (See e.g. . This position has opponents, but it appears that they are the relatively marginal minority. Therefore, this will be the starting point for the continuation of our discussion.

The MMRV Vaccine

30.As mentioned above, according to the Amendment to the National Insurance Law, the Director General of the Ministry of Health is required to publish a program of the vaccinations required. The child allowance will be reduced only for parents who have not vaccinated their children with the vaccines included in the program published. This program currently includes only one vaccine, the MMRV, also known as the quadrivalent vaccine, which is given to infants at the age of one year in a single dosage. Another dose is given to children in first grade, but this dose is not included in the Vaccination Program published. It is therefore appropriate to provide some details on this vaccine.

31.The quadrivalent vaccine, as its name suggests, protects against four diseases: measles, mumps, rubella and chicken pox. The vaccine is common in many countries worldwide. All European countries recommend a vaccine against measles, mumps and rubella. The vaccine against chicken pox is recommended in the United States, Australia, Canada, Germany, Greece, Latvia, and Japan.

32.Measles is a serious childhood disease. The disease may cause serious complications in the respiratory airways and in the nervous system. Approximately one third of patients will develop complications such as otitis media, diarrhea and keratitis. Rarer complications are pneumonia and encephalitis (one in 1000 cases). A very rare complication of the disease, which may appear approximately ten years after its manifestation, is a complication that manifests as a degenerative disease of the brain called subacute sclerosing panencephalitis and which causes serious and irreversible damage to the central nervous system, including mental deterioration and seizures. The risk of complications is higher among children under the age of five, among adults over the age of twenty, and among patients with a suppressed immune system. 1-3 children of every 1,000 patients die from the disease. Worldwide, measles is responsible for approximately twenty-one percent of mortality resulting from diseases preventable by vaccines. Measles is highly contagious, and a person who is not immunized and is exposed to a patient has a general risk of 90% of being infected. The vaccine against measles is very effective. 95% of children who receive the vaccine at the age of one develop antibodies against the disease, which give them long-term immunity. A few lose the protection against the disease after several years, and to address that, a repeat vaccine was introduced in Israel to be administered at school age. It should further be noted that in outbreaks of measles in Israel, the highest morbidity rates were of infants below the age of one, as they were not vaccinated against the disease.

33.Measles manifests in swelling in the salivary glands and in the glands beneath the ear lobe, sore throat, high fever, headaches and weakness. In approximately ten percent of patients, meningitis may develop, which manifests in vomiting and headaches. A common complication among adults is orchitis; more rare complications are an infection in the joints, thyroid, kidney, cardiac muscle, pancreas and ovary, deafness and other complications in the nervous system. Manifestation of the disease in a pregnant woman in the first trimester causes an increased rate of spontaneous miscarriage. The disease is more severe among adults and the rare mortality from the disease is mainly among this group. The vaccine against the disease is very effective. 80% of persons vaccinated with a single dosage are protected, and 90% are protected after receiving 2 doses.

34.Rubella may, in certain cases, cause complications such as encephalitis, which is more common in adults, and hemorrhaging due to a decline in the number of platelets, a phenomenon common mainly in children. Among women in the first months of pregnancy, rubella may harm the developing fetus and cause the death of the fetus or severe birth defects, which include eye defects that cause blindness, heart defects, deafness, defects in the nervous system which cause behavior disorders, and mental disability.

35.Chicken pox manifests in a high fever accompanied by a rash with blisters. Complications of the disease are pneumonia and encephalitis, a severe bacterial infection of the skin, a decline in the number of platelets and in rare cases hemorrhaging, kidney dysfunction, and even death. The disease is more severe among adolescents and adults, and is especially serious among persons with suppressed immunity who cannot receive the vaccine. Cases of death from chicken pox have been described among children treated with corticosteroids, which are frequently given as a treatment for other diseases (such as asthma). Contracting chicken pox in the first twenty weeks of pregnancy may cause birth defects in the eyes, limbs, skin and nervous system. Contracting the disease shortly after birth is especially dangerous for a newborn. Patients who have recovered carry the “varicella-zoster” virus in a dormant state in their body. This virus may, years later, or when the immune system is weakened, cause an outbreak of a disease called “herpes zoster.” This disease causes severe local pain which may last for a long time. The vaccine results in the development of protection in 85% of the persons vaccinated at the age of one year. The vaccine protects against a serious disease with complications, and giving two doses leads to a very high protection of 97%, to a point where it is impossible to identify chicken pox.

36.With respect to the MMRV vaccine, the vaccination coverage in Israel among the general population was on average 90% between the years 2006 and 2009. It should be noted that according to what we have been told, the position of professionals is that to achieve “herd immunity” with the MMRV vaccine, the vaccination coverage required in the population is approximately 95%.

Now that the factual foundation has been laid, the legal aspect shall be built upon it.

Examination of the Constitutionality of the Amendment to the National Insurance Law

37.We should first reiterate what is known: that the Court will not be quick to intervene and repeal statutory provisions enacted by parliament. In this regard, the court must exercise judicial restraint, caution and reserve:

“Indeed, striking down a law or part of it is a serious matter, not to be taken lightly by a judge. Striking down secondary legislation for conflicting with a statute is not the same as striking down primary legislation for conflicting with a basic law. By striking down secondary legislation, the judge gives expression to the desire of the legislator. By striking down primary legislation, the judge frustrates the desire of the legislator. The justification is that the legislator is subject to supra-statutory constitutional provisions, which he himself set. (See A. Barak “Judicial Review of the Constitutionality of a Statute”, Law and Governance C 403 (5756)). Nevertheless, considerable judicial caution is required.” (LAL Case, Paragraph 9).

However, I do not accept the respondents’ position that the judicial restraint required in this case is similar to that required for constitutional review in areas of economy and finance. As is known, case law mandates that this Court exercise particular restraint in areas of economy and finance, which involve far-reaching social and economic aspects. It has been held that the authorities entrusted with the economic policy should be allowed broad leeway “as the entities in charge of determining the comprehensive policy, and bearing the public and national responsibility for the State’s economy and finance.” (Menachem Case, on p. 263; see also HCJ 8803/06 Ganei Chuga Ltd. v. The Minister of Finance, comments of Justice Procaccia (April 1, 2007); Lahav Case, Paragraph 63). In the case at bar, although the Amendment to the National Insurance Law is part of the Arrangements Law, it is not a law whose essence is budgetary or economic. Although this is a socio-public matter, this is not what was meant by the special judicial restraint mentioned. As the respondents emphasized, the purpose of the Amendment is not economic and is not monetary savings. On the contrary, the purpose of the Amendment is to ensure that no child loses his allowance, since the purpose is that all children be vaccinated. Hence, I do not believe that the said case law applies to this matter. It is, however, clear the judicial restraint and reserve required by the mere constitutional review of an act of the Knesset also apply to the case before us.

38.As is known, constitutional review is divided into three stages. At the first stage, it is necessary to examine whether the law in question violates constitutional rights enshrined in the basic laws, and in the case before us, Basic Law: Human Dignity and Liberty (hereinafter, “Basic Law”). If the answer is negative, the constitutional review ends and it should be held that the law in question is constitutional. If the answer is affirmative, it is necessary to proceed to the second stage at which we examine whether the violation satisfied the conditions set in the Limitation Clause in Section 8 of the Basic Law. In order for the law to be declared constitutional, the violation must satisfy all of the conditions set forth in the Limitation Clause. If one of the conditions is not met, it is necessary to proceed to the third stage, which is the stage of the remedy for the unlawful violation. (HCJ 2605/05 Human Rights Unit v. The Minister of Finance, Paragraph 16 of the opinion of President Beinisch (November 19, 2009); HCJ 10662/04 Hassan v. The National Insurance Institute, Paragraph 24 of the opinion of President Beinisch (February 28, 2012) (hereinafter, “Hassan Case”); Lahav Case, Paragraph 75). As held in the Hassan Case, this method of constitutional analysis will be identical both when we are concerned with civil and political rights and when we are concerned with social and economic rights. (Hassan Case, Paragraph 31 of the opinion of President Beinisch).

We shall begin, therefore, at the first stage of constitutional review and examine whether, as the petitioners claim, the Amendment to the National Insurance Law indeed violates rights enshrined in Basic Law. In this framework, we will specify three principal rights that the petitioners mentioned in their pleadings: the right to a dignified life or the right to social security, the right to autonomy, and the right to equality.

The Violated Rights: The Right to a Dignified Life

39.Nowadays, no one disputes that the human dignity enshrined in Basic Law also includes the right to a minimal dignified existence, including both the positive and negative aspects of the right. This right means that “a person will be guaranteed the minimum of material resources that will allow him to sustain himself in the society in which he lives[.]” (HCJ 366/03 Commitment to Peace and Social Justice v. The Minister of Finance [2005] IsrSC 60(3) 464, 482 (hereinafter, “CPSJ Case”)). It was held that this right is at the core and nucleus of human dignity:

“Living in starvation and without shelter, while constantly searching for handouts, is not a dignified life. A minimal dignified existence is a condition not only to preserving and protecting human dignity, but also to exercising other human rights. There is no poetry in a life of poverty and deprivation. Without minimum material conditions, a person lacks the ability to create, aspire, make his choices and realize his freedoms.” (Hassan Case, Paragraph 35 of the opinion of President Beinisch).

It was further held that the right to a dignified life is not a right derived from the right to human dignity, but a right that constitutes a tangible manifestation of human dignity. (Hassan Case, Paragraph 36 of the opinion of President Beinisch; CPSJ Case, on p. 479).

40.The right to a dignified life is protected by the State using a variety of measures, systems and arrangements, and there is no doubt that the welfare legislation and allowances of the National Insurance Institute constitute a considerable and significant part of the realization of this right. The child allowances also constitute an additional tool to realize the right, since families living in poverty due to, inter alia, the expenses of raising children, can gain much assistance from these allowances and rise above the threshold that enables a dignified life. It should indeed be kept in mind that child allowances are universal allowances given according to the make-up of the family, and are not dependent on the family income. Therefore, the object of realizing a dignified life will not always be relevant to these allowances, compared to income assurance, for example, which is an allowance whose main purpose is to create a lasting safety net for families that need it. (Hassan Case, Paragraph 44 of the opinion of President Beinisch). However, there might be cases in which families on the edge of the last safety net will fall below it if they are denied the child allowance. The assumption is that “the gamut of the welfare arrangements granted in Israel provide the ‘basket’ required for a minimal dignified life.” (Hassan Case, Paragraph 46 of the opinion of President Beinisch).

41.Despite the aforesaid, I believe that in the case at bar, the petitioners have not presented a sufficient factual foundation to prove the existence of a violation of the right to a dignified life resulting from the Amendment to the National Insurance Law. As is known, a person who claims a violation of a constitutional right bears the burden of proving such violation. (Aharon Barak, Interpretation in Law – Constitutional Interpretation 374 (Vol. 3, 1994)). The petitioners bear the burden of demonstrating that after examination of the range of services provided to the family, reduction of the child allowances will cause harm to the dignity of families whose material living conditions will fall short. At the very least, and under the lenient approach, they should have presented individual cases that indicated the alleged harm; then, the burden of proof would have shifted to the State. (See the comments of President Beinisch in the CPSJ Case, on p. 492-493; HCJ 4124/00 Yekutieli v. The Minister of Religious Affairs, Paragraph 48 of the opinion of President Beinisch (June 14, 2010) (hereinafter, “Yekutieli Case”)). In the CPSJ Case, it was held that the mere reduction, even if it is a significant reduction, in income assurance allowances, does not in itself  prove a violation of the right to a dignified life, and it is necessary to examine the gamut of services and arrangements granted as a safety net in the State of Israel. “The examination is always concrete and consequential.” (CPSJ Case, Paragraph 19 of the opinion of President Barak; see also PHR Case, on p. 334; HCJ 10541/09 Yuvalim S.D.I. Ltd. v. The Israeli Government (January 5, 2012)).

42.The above is all the more relevant to the case before us. First, the petitioners did not point to any data proving their claim regarding the violation of the right to a dignified life of families to whom the Amendment will apply. The reduction in the child allowance cannot, in and of itself, establish a foundation for proving the violation. “The right to dignity, as well as the right to a dignified life, is not the right to a monthly allowance in a certain amount.” (CPSJ Case, on p. 485).

Second, this case concerns child allowances, distinguishable from income assurance allowances. As I stated, while the central purpose of the latter is to create a safety net for the realization of the right to a dignified life, this is merely one of the purposes of the child allowance. Therefore, while there are grounds to assume that denying income assurance allowance for reasons other than the existence of different sources of income violates, under the appropriate circumstances, the right to a dignified human existence of the person whose allowance was denied (see Hassan Case, Paragraph 46 of the opinion of President Beinisch), it is difficult to make a similar assumption with respect to the denial of the child allowances, and certainly with respect to their reduction. The case of child allowances therefore requires even more data-based proof of the violation of the right to a dignified life.

Third, and perhaps most important, most of the reduction in the child allowances for families who do not vaccinate their children is made after an increase of a similar amount of the child allowance, as it was prior to the Amendment. The Amendment increased the child allowance for the second, third and fourth child by NIS 100 per month for each child. At the same time, the reduction due to non-vaccination is NIS 100 per month for each child. It should be emphasized that for a family with more than three children the reduction is capped by the Amendment at NIS 300 per month, such that the reduction will be paralleled by a NIS 300 per month increase of the child allowances for that family (for the second, third and fourth children). The increase was also taken into account for families with two or three children, because for these families the maximum reduction will be NIS 100 and NIS 200 per month, respectively, equal to the increase in the child allowances that these families will receive. The only difficulty pertains to a family with a single child. In such a family, a reduction may be made in the sum of NIS 100 per month if the child is not vaccinated with the MMRV vaccine without such family receiving an increase in the child allowance to which the family is entitled. However, even with respect to such a family, it cannot be said that a violation of the right to a dignified life has been proven. As said above, data showing such a violation for a family of this type was not presented. In the absence of data, it may also be assumed that families with one child are less at risk of deprivation compared to large families. (See data thereon in the article of Yoram Margalioth “Child Allowances”, the Berenson Book on 733, 747-748 (5760)). Finally, weight should be given to the fact that even for such a family, the child allowance to which the family is entitled is merely reduced and not fully denied. In any event, “a deduction from a person’s income . . . is not the same as not granting a benefit.” (Betzedek Case, on p. 409). Where the main reduction is made following an increase of a similar amount in the allowance, it should be deemed as not granting a benefit, not as a deduction from a person’s income.

The conclusion is therefore that the Amendment does not violate the right to a dignified life.

43.I should note that insofar as the petitioners claim a violation of the right to social security, as distinguished from the right to a minimal dignified existence, they did not provide any support for its existence as a constitutional right, and made no argument as to the content of such right as distinguished from the right to a minimal dignified existence. This Court has not yet discussed the status and scope of the right to social security in Israeli law. (See HCJ 5578/02 Manor v. The Minister of Finance [2004] IsrSC 59(1) 729, 737 (hereinafter, the “Manor Case”); PHR Case, on p. 333). The petitioners did not expand on this issue, and it appears that some of them did not specify the differences between the two rights at all. Hence, I saw no room to discuss the issue of violation of this right separately. This is also the case with respect to the claim of violation of the property right. The question of whether the constitutional right to property applies to child allowances has not yet been decided in the judgments of this Court. (See the comments of Justices (formerly) Grunis and Rivlin in the Manor Case). The petitioners in HCJ 7245/10 raise this claim in a laconic and unsubstantiated manner, and I therefore also did not expand on this claim. In addition, I should note that the contractual assertion raised by the petitioners should be dismissed. No link is required between the insurance contributions collected by the National Insurance Institute and the allowances paid to entitled persons in respect of the various grounds for entitlement. (Lahav Case, Paragraph 57). Therefore, no harm is caused to the expectation of parents who pay national insurance contributions and whose child allowance will be reduced as a result of not vaccinating their children and a fortiori when the reduction in the child allowances almost fully corresponds to the increase in the amount of the allowance by the Amendment.

The Violated Rights – The Right to Autonomy and Parental Autonomy

44.The petitioners in HCJ 908/11 raised, at the center of their arguments, the violation of the right to autonomy, the right to parental autonomy and the right to parenthood. “One of the most important basic values is the value of the individual’s freedom of will” (Aharon Barak, Interpretation in Law – General Theory of Interpretation, 301 (vol. 1, Ed. 3, 1998)). This value of autonomy constitutes part of human dignity and is constitutionally protected by the Basic Law (HCJ 4330/93 Ganam v. The Israel Bar Association [1996] IsrSC 50(4) 221, 231 (hereinafter, the “Ganam Case”)). The meaning of the right to autonomy is the right of every individual to decide on his actions and wishes, according to his choices, and to act according to such choices:

 A person’s right to shape his or her life and fate encompasses all the central aspects of his or her life: place of residence, occupation, the people with whom he or she lives, and the content of his or her beliefs. It is a central existential component of the life of every individual in society. It expresses recognition of the value of every individual as a world unto him or herself. It is essential for the self-determination of every individual, in the sense that the entirety of an individual’s choices constitutes his or her personality and life.

(CA 2781/93 Ali Daka v. Haifa “Carmel” Hospital [1999] IsrSC 53(4) 526, 570 (hereinafter, the “Ali Daka Case”). The right to autonomy is a framework right from which many other rights are derived. (See Ganam Case; HCJ 7357/95 Barki Feta Humphries (Israel) Ltd. v. State of Israel [1996] 50(2) 769; see also Ali Daka Case, on p. 572). The importance of the right to autonomy was recognized especially in the context of giving or avoiding medical treatment, and it gives rise to a separate cause of action which entitles the claimant to damages. (Ali Daka Case).

45.One of the aspects of the right to autonomy is the right to parental autonomy. Parents are the natural guardians of their children. (Section 14 of the Legal Capacity and Guardianship Law, 5722-1962 (hereinafter, the “Legal Capacity Law”)). As such, they have the “obligation and the right to care for the needs of the minor, including his education, studies, training for work, occupation, and employment, as well as preserving, managing and developing his assets; also attached to this right is the permission to have custody of the minor and authority to represent him and to determine his place of residence.” (Section 15 of the Legal Capacity Law). The parents are obligated to ensure the “best interests of the minor [in the way that] devoted parents would act under the circumstances.” (Section 17 of the Legal Capacity Law). This Court’s rulings have recognized a very broad autonomy of parents in raising their children. Several reasons are presented as underlying this recognition. First, this recognition derives from the natural connection between a child and his parents. Second, it is commonly assumed that the parents, who are in charge of the family unit and know it from every aspect, will make the best decisions for the children. The supplementary assumption is that outsiders will not always be able to make the best decisions for the minor because the decisions often entail emotional aspects. Third, often these are issues on which there is no social consensus. Finally, the fact that the parents are those who will need to cope with the practical repercussions of the decision is taken into account. (LCA 5587/97 The Attorney General v. John Doe – Minor, PDI [1997] IsrSC 51(4) 830, 860 (1997)). However, it should be emphasized that the autonomy of parents vis-à-vis their children is not absolute and is limited by the principles of the child’s best interests and his rights.

46.Nevertheless, I do not believe that any harm to autonomy or parental autonomy will be recognized as constitutional harm which requires compliance with the terms and conditions of the limitation clause. Obviously, the closer the harm is to the core of the right, the greater the inclination to recognize it as constitutional violation. (See the comments of Deputy President Rivlin in CA 8126/07 The Estate of the Late Bruria Tzvi v. Bikur Holim Hospital (January 3, 2010)). “Overexpansion of the extent of the constitutional right should be avoided. Sweeping expansion of the limits of the constitutional right at the first stage, and “automatically” proceeding to the tests of the limitation clause in any case in which it is argued that legislation violates that right, may lead, in the overall balance, to an erosion of the protection granted by the basic laws.” (Hassan Case, comments of Justice U. Vogelman). It appears to me that two parameters may be examined to determine whether or not the violation will be recognized as a constitutional violation of the right to autonomy. First, the essence of the choice denied the individual should be examined. The more the harm to autonomy pertains to aspects concerning personal expression and self-realization of the person, the greater the inclination to deem it as a violation of a constitutional right. Denying a citizen of the State the possibility to marry the love of his life is not the same as denying another the option to choose the type of facilities that will be installed in the public park next to his home. A second parameter that should be examined in my opinion is the extent of coercion and denial of will. A prohibition that entails a criminal sanction is different from the denial of a minor financial benefit.

47.In the case at bar, I am not convinced that a violation of the constitutional right to autonomy or to parental autonomy has occurred. Even if I assume that the first parameter regarding the essence of the choice denied is met, the second parameter regarding the extent of the coercion is not fulfilled. The Amendment does not create an obligation to vaccinate children, nor does it impose a criminal sanction on non-vaccination. The monetary reduction that accompanies non-vaccination of children is not high and can range between NIS 100 and NIS 300 per month at most. Even if I do not disregard the fact that for some families this amount is significant, as mentioned above, it is, for the most part, a reduction of the same amount that was added to the child allowances in the Amendment to the National Insurance Law. Hence, I do not believe that the reduction in the Amendment may be deemed to violate the right to autonomy in its constitutional sense.

The Violated Rights: The Right of Equality

48.Much has already been said in the rulings of this Court on the right of equality, its status and importance, and it has been widely extolled:

The principle of equality is one of the building blocks of the law and constitutes the backbone and ‘life-blood’ of our entire constitutional regime. (Justice Landau in HCJ 98/69 Bergman v. The Minister of Finance [1969] IsrSC 23(1) 693, 698; HCJ 4805/07 Israel Religious Action Center of the Israel Movement for Progressive Judaism v. The Ministry of Education, Section 70 of the opinion of Justice A. Procaccia (July 27, 2008) (hereinafter, “IRAC Case”); HCJ 11956/05 Bashara v. The Minister of Construction and Housing (December 13, 2006)). The right of equality was recognized in our legal system in the early days of the State, when it received a place of honor in the Proclamation of Independence, and it was further established in various laws that were enacted by the Knesset over the years, and in the case law of this Court, which deemed it a ‘regal right’ and a principle which is ‘high above the other principles’.” (HCJ 2671/98 The Israel Women’s Network v. The Minister of Labor and Social Welfare [1998] 52(3) 630, 650; HCJ 2911/05 Elchanati v. The Minister of Finance, Section 17 of the opinion of Justice E. Hayut (June 15, 2008)); APA 4515/08 State of Israel v. Neeman, Paragraph 17 of my opinion (October 6, 2009) (hereinafter, “Neeman Case”)).

And elsewhere I stated:

            “It appears that no one disputes that equality is the keystone of a democratic regime and a central aspect of the relations between the individual and the State. No society can be maintained in a democratic state without equality, which is one of the derivatives of justice and fairness. Equality is a synonym for justice and fairness, as it appears to members of society in a certain period. Equality leads to justice, equality whose path is fairness. (See HCJ 7111/95 Federation of Local Authorities in Israel v. The Knesset [1996] IsrSC 50(3) 485, 502)” (HCJ 6298/07 Rasler v. The Israeli Knesset, Paragraph 18 of my opinion (February 21, 2012)).

The importance of the right of equality has been recognized and emphasized numerous times with respect to the distribution of budgets or resources of the State. “The resources of the State, whether land or money, as well as other resources, belong to all citizens, and all citizens are entitled to benefit from them according to the principle of equality, without discrimination on the basis of religion, race, sex or any other prohibited consideration.” (HCJ 1113/99 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister for Religious Affairs [2000] IsrSC 54(2) 164, 170).

49.The right of equality, which creates the duty not to discriminate, does not mean equal treatment for everyone. It is a complex right which results from the fact that the common concept of equality seeks to give equal treatment for equals and unequal treatment for unequals. Equality does not require things to be identical. (HCJ 6427/02 The Movement for Quality Government in Israel v. The Knesset [2006] IsrSC 61 (1) 619, 677 (hereinafter, the “MQG Case”). Not every difference between people justifies distinguishing between them, but only a difference that is relevant to the matter in question. (HCJ 200/83 Veted v. The Minister of Finance [1984] IsrSC 38(3) 113, 119 (hereinafter, the “Veted Case”)). “The difference between wrongful discrimination and a permitted distinction depends, as is known, on whether a relevant difference exists between the groups that received different treatment from the authority.” (HCJ 6758/01 Lifshitz v. The Minister of Defense [2005] IsrSC 59(5) 258, 269; Yekutiel Case, Paragraph 35, 37 of the opinion of President Beinisch). In order to determine that the right of equality has been violated, it is necessary to examine who is the group of equals for the purpose of the matter at hand. The group of equals will be decided according to the purpose of the examined norm and the nature of the matter and the circumstances, as well as in accordance with common social conceptions. (HCJ 8300/02 Nasser v. The Israeli Government, Paragraph 37 (May 22, 2012) (hereinafter, the “Nasser Case”; Neeman Case, Paragraph 18 of my judgment; MQG Case, on p. 677; HCJ 1213/10 Nir v. The Speaker of the Knesset, Paragraph 14 of the opinion of President Beinisch (February 23, 2012) (hereinafter, the “Nir Case”; HCJ 4906/98 “Free Nation” for Freedom of Religion, Conscience, Education & Culture v. The Ministry of Construction and Housing [2000] IsrSC 54(2) 503, 513); Veted Case, on p. 119, 122; Yekutieli Case, Paragraph 36 of the opinion of President Beinisch).

In the case before us, it appears to me that it is possible to say that the right of equality   has been violated. As described above, child allowances are universal allowances that are granted to every family according to its composition. Their purpose is to assist in financing the expenses of raising children, and to prevent the family in general and the children in particular from becoming impoverished. Therefore, adding a condition to the receipt of the allowance that is dependent on the vaccination of the family’s children is foreign both to the structure of the allowance and to its purposes. Indeed, the child allowance serves the best interests and welfare of the children, and the assumption is that vaccinating the children is also in their best interests and protects their health. It is still a stretch to say that the condition is naturally integrated with this allowance. The main and natural condition to receiving the allowance is the number of children. Additions and conditions beyond that (apart from conditions such as residency, and without going into the issue of conditioning the allowances on income) would be foreign to the allowance, and therefore violate the right of equality. The fact that the allowances are intended for the best interests of the children also has repercussions for the determination that the right to equality has been violated. In fact, children whose parents decide not to vaccinate them are harmed twice, both by their non-vaccination and by the decision to reduce the allowances intended for their benefit. The equality group, therefore, is all parents who are insured pursuant to the National Insurance Law.

50.The petitioners argue that in principle, the national insurance allowances, the main purpose of which is social-welfare, should not be made contingent upon conditions intended to regulate behavior and achieve other social objectives that do not have a direct and close connection to the allowance granted. They emphasized that the allowances are not a prize for proper behavior. They also raise an understandable concern about the expansion of the conditions to the point of absurdity. Will it be possible to condition the granting of child allowances on the parents not smoking? On maintaining proper nutrition? On installing bars on home windows? Where will the line be drawn between behavior that ought to be encouraged through the conditioning of child allowance and that for which conditioning will not be the correct and constitutional tool? (See the comments of Members of the Knesset at the Finance Committee’s discussion on June 24, 2009).

51.“The main purpose of social insurance is to realize the State’s obligation to ensure a minimum standard of living for all of its residents, so that no person falls below the threshold of a dignified life. Social insurance, and the statutory frameworks intended to realize it, are an important component in realizing the idea of a society based on foundations of justice, equality and social care for the needy.” (Lahav Case, Paragraph 44; Johnny Gal

52.However, our work does not end here. Since we are concerned with primary legislation of the Knesset, it is necessary to examine the issue and ask whether the violation of equality in this case is a violation in the constitutional sense, i.e. whether it amounts to a violation of the right to human dignity enshrined in the Basic Law. “The Knesset has broad discretion in the task of legislation, and there are situations in which broader protection may be afforded against a violation of equality caused by an administrative authority than to one inflicted by the legislator.” (Nasser Case, Paragraph 43). In the MQG Case, an interim model was adopted for interpretation of the term human dignity in the Basic Law:

The interim model does not limit human dignity merely to humiliation and contempt, but it also does not expand it to all human rights. According to this model, human dignity includes those aspects of human dignity which find, in various constitutions, manifestation in special human rights, and are characterized by having, according to our perception, a pertinent and close connection to human dignity (whether at its core or in its margins). According to this approach, human dignity may also include discrimination that is not humiliating, provided that it is closely related to human dignity as expressing the individual’s autonomy of will, freedom of choice and freedom of action, and other such aspects of human dignity as a constitutional right.

(MQG Case, on p. 687). Not every violation of equality, therefore, amounts to a constitutional violation. In order to prove a violation of the constitutional equality, it is necessary to demonstrate that the violation of equality has a pertinent and close connection to human dignity (whether at its core or in its margins). (See also Nir Case, Paragraph 11 of the opinion of President Beinisch; HCJ 9722/04 Polgat Jeans Ltd. v. The Israeli Government (December 7, 2006); HCJ 8487/03 IDF Disabled Veterans Organization v. The Minister of Defense [2006] IsrSC 62(1) 296, Paragraph 23; Nasser Case, Paragraph 44; Lahav Case, Paragraph 76).

53.It appears that the discrimination in this case violates the constitutional right of equality as part of human dignity. The fact that a small group of residents is excluded from the group of all residents with children because of its choice not to vaccinate its children violates the human dignity of this group. The gap created between the two groups creates a sense of discrimination of the latter group, and has a close connection to human dignity. (See, similarly, Lahav Case, Paragraph 92). The violation is comprised of both the lack of respect for the belief or choice of this group not to vaccinate its children for various reasons, and the sense that other parents, whose actions may harm the best interests of their children or the best interests of the public in other ways, continue to receive full child allowances. The sense is that the legislator focused specifically on this group and on this social objective, which is the only one for which a condition is imposed on the child allowances, harming the dignity of the chosen group. (See Nasser Case). The consequence that this reduction has on the distinction between groups of children also contributes to the conclusion that the right of equality has been constitutionally violated.

However, it appears that there is no need to rule on this issue, in light of my conclusion that the above violation satisfies the requirements of the limitation clause. I will proceed, therefore, to examine the violation through the lens of the limitation clause in Basic Law.: Human Dignity and Liberty.

 

The Limitation Clause

54.It is well known that the right of equality, like other rights, is not an absolute right, and as such it requires a balancing with other rights and interests relevant to the issue in question. This balance is formed in the limitation clause set forth in Section 8 of Basic Law: Human Dignity and Liberty:

There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required or by regulation enacted by virtue of express authorization in such law.

President Barak stated the importance of the limitation clause in the MQG Case:

This provision plays a central role in our constitutional structure. It is the foothold on which the constitutional balance between the individual and the general public, between the individual and society, rests. It reflects the concept d. (See D. Hodgson, Individual Duty Within a Human Rights Discourse (2003)). It reflects the concept that the human rights set forth in Basic Law: Human Dignity and Liberty are not absolute but rather relative. They are not protected to their full scope. The limitation clause emphasizes the concept that the individual lives within the confines of society, and that the existence of society, its needs and tradition, may justify a violation of human rights. (See re. United Mizrahi Bank Case, p. 433; re. Investment Managers Bureau Case, p. 384; APA 4436/02 Ninety Balls – Restaurant, Members Club v. The City of Haifa, PDI IsrSC 58(3) 782, 803 (hereinafter, “re. Ninety Balls Case”) (re. MQG Case, on p. 691-692).

55.The limitation clause contains four conditions, only upon the cumulative fulfillment of which will the non-constitutionality of the prejudicial law be prevented. The first condition is that the violation of the human right was made in or by a law or by virtue of explicit authorization therein. The second condition is that the prejudicial law befits the values of the State of Israel. The third condition is that the prejudicial law is intended for a proper purpose. The fourth condition is that the law violates the right to an extent no greater than is required.

56.There is no dispute that the first condition is satisfied. In addition, the petitioners did not raise claims with respect to the satisfaction of the second condition. Therefore, all that remains is to examine the existence of a proper purpose and the proportionality test.

57.“The purpose of a law that violates human rights is proper if it is intended to achieve social objectives that are consistent with the values of the State in general, and exhibit sensitivity to the place of human rights in the overall social fabric.” (MQG Case, on p. 697). It was further held that the more important the right violated, and the greater the harm, the stronger the public interest needed to justify the violation. (MQG Case, on p. 698-700; Yekutieli Case, Paragraph 44 of the opinion of President Beinisch; Nir Case, Paragraph 19 of the opinion of President Beinisch; Hassan Case, Paragraph 55 of the opinion of President Beinisch). Part of the petitioners’ claims regarding the satisfaction of the proper purpose condition focuses on the violation alone and not on its purpose. In addition, the petitioners argue that the purpose of increasing the vaccination rate is extraneous to the purpose of the allowances and may create a dangerous precedent of reducing allowances on various grounds. As I stated above, I do not believe that every conditioning of allowances is prohibited, and the fear of a slippery slope is a matter for the proportionality test. It appears to me that the purpose of increasing the rate of vaccination among children is a proper purpose which promotes an important social objective of caring for public health in general and children’s health in particular. The purpose underlying the Amendment does not focus only on children that have not yet been vaccinated, but also on additional populations that may be harmed as a result of non-vaccination of such children, including newborn infants whose time to be vaccinated has yet to arrive, populations who are unable to be vaccinated for various medical reasons, a certain percentage of the population whom the vaccination does not protect, despite being vaccinated, etc. As stated above, the diseases against which the vaccines protect might cause serious complications that compromise a person’s health and in rare cases might even cause his death. In this sense, the purpose of the Amendment has a close connection to the right to health and life. Therefore, even if we say that the Amendment seriously violates an important right, the purpose of the Amendment is sufficiently strong and important to justify the violation.

58.I further add that the purpose of the Amendment also expresses the principle of mutual guarantee. A separate question is whether encouraging vaccination could be deemed as a proper purpose if we were concerned only with the best interests of the children who have not yet been vaccinated. However, the purpose does not concern only the best interests of the children who have not been vaccinated or whose parents do not intend to vaccinate them, but the best interests of a broader population, as described above. The non-vaccination of such children may have an effect not only on their health and life, but on the health and life of a broader population. The principle of mutual guarantee, alongside the said purposes, justifies deeming the purpose of the Amendment as a proper purpose. It should be noted that this principle is not extraneous to the National Insurance Law, but rather, as I already mentioned, underlies it, albeit in a different context.

The conclusion is therefore that the proper purpose condition is satisfied. All that remains is to examine is whether the violation meets the proportionality test of the limitation clause.

59.The determination that the purpose of the violating law is proper does not mean that all of the measures taken to achieve it are legitimate. The end does not always justify the means. (Yekutieli Case, Paragraph 47 of the opinion of President Beinisch). The proportionality test was created for this situation. The test is divided into three subtests, all three of which must be satisfied in order to hold that the violation is proportionate. The first subtest is the “compatibility test” or the “rational connection test”. In accordance with this test, a connection of compatibility is required between the end and the means. The second subtest is the less harmful means test. According to this test, the legislator is required to choose a measure which achieves the legislative purpose and which least violates the human right. The third subtest is the proportionality test in the narrow sense. It examines the proper relation between the benefit derived from achievement of the proper purpose and the scope of the violation of the constitutional right.

60.It appears to me that the Amendment satisfies the rational connection test. It should be noted that several means might achieve the end. In addition, there is no need to prove that the means will definitely achieve the end, and a reasonable degree of probability of achieving the end is sufficient. (MQG Case, on p. 706; Hassan Case, Paragraph 59 of the opinion of President Beinisch). It should further be emphasized that there is no requirement that the means chosen achieve the end in full, and partial achievement, not minor or negligible, of the purpose following the use of the means chosen is sufficient. (Nir Case, Paragraph 23 of the opinion of President Beinisch; Hassan Case, Paragraph 59 of the opinion of President Beinisch). Indeed, it is impossible to know for certain whether the Amendment will achieve its objective and whether the percentage of vaccinated persons will rise significantly and create “herd immunity”, or at the very least create a broader protection for the public. However, it is possible to say that there is a sufficiently high probability that such objective will be achieved. The respondents presented data regarding the success of similar programs in countries worldwide and about the support of the World Bank for such programs. (See also Gal, on p. 256-257; report of the Knesset Research and Information Center of June 23, 2009 regarding increasing and conditioning the child allowances). In addition, data was presented regarding a similar program implemented in Israel that made the receipt of maternity allowance contingent upon delivery in a hospital in order to reduce the phenomenon of home births. The respondents report that following this legislation, the number of home births in Israel decreased significantly. Past experience therefore indicates a substantial probability of achieving the objective with this measure. It should also be added that the assumption is that some parents who do not vaccinate their children are not acting based on ideological reasons, and that there is a “free rider problem” whereby parents are in no hurry to vaccinate their children and rely on the vaccination of the entire public to protect their children against outbreaks of diseases. The respondents also indicated the difficulty of late vaccination of children, which the Amendment might solve by incentivizing parents to vaccinate their infants on time. Finally, I note that after the Amendment is implemented and real data collected regarding its repercussions, it will be possible to reexamine the reality created, and it might transpire that this reality does not meet the rational connection test or another proportionality test. (See HCJ 9333/03 Kaniel v. The Israeli Government [2005] IsrSC 60(1) 277, 293).

61.The Amendment, in my mind, the second subtest, the less harmful means test. It should be kept in mind for the implementation of this test that the court does not put itself in the shoes of the legislator, and that it will intervene only when it is convinced that the expected purpose may be achieved through the use of less harmful means –

When examining the severity of the violation and whether there is a less harmful means through which it is possible to achieve the purpose of the legislation, the court does not put itself in the shoes of the legislator. The assumption underlying the test of need is that there is maneuvering space in which there may be several methods for achieving the objective of the legislation, from which the legislator can choose one method. So long as the chosen method is within this maneuvering space, the court will not intervene in the legislator’s decision. The court will be prepared to intervene in the method chosen by the legislator only where it is possible to demonstrate that the harm is not minimal, and that the purpose of the legislation may be achieved through the use of less harmful means.”

(Yekutieli Case, Paragraph 45 of the opinion of President Beinisch). Indeed, there is a range of means for achieving the purpose of encouraging vaccination. Some of these means are more harmful than the means adopted by the legislature, and therefore are irrelevant for the purpose of the test in question. This is the case with respect to criminal sanctions on anyone who fails to vaccinate his children, as proposed by some of the petitioners, and for denying school attendance for those who cannot provide confirmation of vaccination, as is done in the United States. (James G. Hodge & Lawrence O. Gostin, “School Vaccination Requirements: Historical, Social and Legal Perspectives” 90 Ky. L.J. 831 (2001-2002)). It should further be emphasized that the economic sanction used in the Amendment is very similar to the denial of a benefit, since in the majority of cases, the reduction that will be made in the child allowance of parents who have not vaccinated their children is equal to the increase in the child allowances in the same Amendment. The petitioners refer to additional means that concern informational activities and increasing accessibility to Family Health Centers. With respect to informational activities, this is certainly an appropriate means, but it is included and precedes implementation of the Amendment itself. The respondents stated that a campaign is planned for informing the population about the law, in which the importance of vaccination will also be emphasized. Obviously, the sanction of reduction of child allowances will not be used against those who are convinced by the informational activity and vaccinate their children. Therefore, the informational means is also incorporated into the means chosen. The concern, of course, is that the informational means are insufficient in view of the vaccination “market failure,” whereby, as aforesaid, a child who is not vaccinated may be protected against the outbreak of diseases due to the vaccination of the population around him, but this failure may cause the non-vaccination of a certain population, which will cause the outbreak of an epidemic therein.

62.Regarding the accessibility of the Family Health Centers, this difficulty pertains to the Bedouin population in the Negev, and mainly to the population of the unrecognized villages in the Negev. Due to this difficulty, which the respondents recognize, the implementation of the Amendment was postponed in order to make arrangements and increase the accessibility of Family Health Centers to this population. However, the steps specified in the respondents’ response are satisfactory with respect to the level of accessibility achieved and the efforts being made to further increase it. The respondents report that there are currently forty-five Family Health Centers spread throughout the southern district, twenty-five of which service the Bedouin community: thirteen centers in permanent settlements, eight portable centers for the Bedouin villages, and centers in the Jewish settlements which also service the Bedouin population. There is also a special mobile family health unit to provide vaccinations for the Bedouin population. This mobile unit travels every day through a different location in the unrecognized villages and is intended to vaccinate children of families who have not visited Family Health Centers. The unit is operated five times a week between 8:00 and 16:00. Three centers in Bedouin settlements which were closed have been reopened and a petition filed on the matter was dismissed with consent. (HCJ 10054/09). The respondents are also working to encourage hiring of male and female nurses for Family Health Centers in the south and in the Bedouin settlements. To this end, it was decided to increase the financial incentive for such personnel, to add administrative personnel and security positions for the centers, and to add positions to make the services accessible to the population that finds it difficult to come to the centers. In June 2011, an incentive plan was formed for the personnel of the Family Health Centers in the Bedouin sector in the south of Israel, including payment of an encouragement bonus, payment of a persistence bonus, reimbursement for rent in certain cases, consideration for travel time to and from work, increased overtime pay, and provision of a mobile telephone to nurses. The respondents further state that mediators are brought in to make the services culturally accessible, and their role includes providing information about the importance of early registration with a Family Health Center. A special program financed by the Ministry of Health was established at Ben-Gurion University to train nurses from the Bedouin sector. The program’s students undertake to work in the Bedouin sector upon completion of their studies.

The current data regarding vaccination of the Bedouin population in the Negev with the MMRV vaccine should also be taken into account. According to the data, the vaccination rate for this vaccine in the Bedouin population is higher than in the Jewish sector, the rate in the unrecognized villages is 90%, and in the permanent settlements 93.5%.

It therefore appears that the less harmful means for achieving the purpose of encouraging vaccination have been exhausted, and the next step on the ladder for achieving the purpose may be at the economic level, as was done in the Amendment. The second subtest is therefore also satisfied.

63.The last question that we must ask is whether we ought to go one step further on the ladder, after previous steps have not yet achieved the desired objective. This is an ideological question, which is based on principles of balance and examines the relationship between the benefit in achieving the proper purpose and the damage that will be caused by the violation of human rights. (See MQG Case, on p. 707; Hassan Case, Paragraph 69 of the opinion of President Beinisch). In my opinion, the Amendment also satisfies this test. We should not disregard the harm that will be caused to parents who do not wish to vaccinate their children, who will be discriminated against compared to the group of child allowance recipients and will either need to be satisfied with a reduced allowance or act against their will and vaccinate their children. There is also difficulty in the distinction that may be created between strong groups in the population which can allow themselves to waive part of the child allowance in order to realize their desire not to vaccinate their children and weak groups which will be forced to choose between aggravated poverty and waiving their desire not to vaccinate their children. Conversely, consideration should be given to the fact that the violation of equality in this case is not arbitrary and is not based on any suspect distinction between different sectors. In addition, the harm was limited to reduction of the child allowance, and was also limited to a maximum amount that can be reduced. Further arrangements in the Amendment, including a right of appeal, prior notice, and increasing the allowances after vaccination also support the proportionality of the violation. On the other side is the benefit, as I have already stated, that may be significant and important to the health of those children who have not yet been vaccinated, and more importantly, to the public at large. The effect of each and every individual on the public justifies a balance which harms the individual to a limited and restricted extent for the benefit of the public. It is impossible to ignore that the individual lives within society and sometimes his acts or omissions impact the society around him:

A person is not solitary individual. The person is a part of society. (HCJ 6126/94 Sanesh v. The Broadcasting Authority, on p. 833). A person’s rights are therefore his rights in an organized society; they concern the individual and his relations with others. (HCJ 5016/96 Chorev v. The Minister of Transport, on p. 41). Hence, a person’s dignity is his dignity as a part of society and not as an individual living on a desert island. (Cr.M 537/95 (hereinafter, “Cr.M Ganimat”), on p. 413; LCA 7504/95 Yassin v. The Registrar of Political Parties, on p. 64; HCJ 7015/02 Ajuri v. The Commander of the IDF Forces in the West Bank, on p. 365)” (hereinafter, the “CPSJ Case, on p. 496-497).

A balance is therefore required between the rights of the individual and the best interests of society, a balance, which in my opinion, is proportionate in the case at bar, and within the bounds of proportionality afforded to the legislator.

Conclusion

  1. The constitutional examination of the Amendment to the National Insurance Law revealed that the Amendment indeed violates the right of equality enshrined in the Basic Law: Human Dignity and Liberty. However, this violation satisfies all of the terms of the limitation clause, such that a proper balance is struck with other rights and interests. Hence, the Amendment is proportionate and this Court will not intervene. I will mention that this Court does not examine what it would have done in the legislator’s shoes and what its preferences would have been in such a matter, but merely examines whether the legislator’s choice is within the boundaries of the range of proportionality available to the legislator. (See HCJ 1715/97 The Bureau of Investment Managers in Israel v. The Minister of Finance, [1997] IsrSC 51(4) 367, 386). I mentioned that most of the reduction in the child allowances will be executed simultaneously with the increase in the allowances set in the Amendment. I further noted the importance attributed to the vaccination of the children, not only for the health of the children themselves, but also for the health of the environment, society and the public. Thus, the conclusion I have reached is that the violation resulting from the Amendment satisfies the conditions of the limitation clause and therefore, the petition should be denied. I did not see fit to an order for costs.

If my opinion is heard, the petition will be denied and as aforesaid, there will be no order for costs.

 

  •  

Justice D. Barak Erez

  1. The petitions before us raised fundamental issues pertaining to the manner in which the State fulfills its responsibility for the health of the public in general and the welfare of children in particular. They also raised the basic issue of conditioning rights and eligibilities. In general, I concur with the comprehensive opinion of my colleague, Justice E. Arbel, and I too believe that the petition should be denied. Nevertheless, I wish to clarify my position with respect to some of the reasons that support this conclusion.

The Legal Issues

  1. In fact, the discussion of the issue that has been placed before us—conditioning a part of the child allowances on the children’s vaccination within an amendment to a law—raised several secondary issues. The first question concerns the examination of the essence and legal status of the child allowances, the conditioning of which is at the center of our discussion. Specifically, the question in this context is whether the eligibility for child allowances is an “ordinary” legal right, conferred merely by a law, or whether it constitutes a manifestation of constitutional rights. Insofar as the argument is that the child allowances embody constitutional rights, it is necessary to examine what is the constitutional right they represent. This question is important because the violation of a constitutional right is not tantamount to the violation of a legal right that does not enjoy a super-statutory status. The second question revolves around the essence and purpose of the condition for granting the allowance: the requirement to vaccinate the children as infants. As part of this question, it is necessary to examine what is the purpose of the vaccination requirement is and whether there is a link between this purpose and the objective of the child allowances. The third question focuses on the legal regime that applies to the conditioning of rights. This question is related to the first question, since the conditioning of legal rights and the conditioning of constitutional rights should not be addressed in the same manner. The fourth question is whether the distinction that was made in legislation between parents who vaccinate their children and parents who do not amounts to a violation of the constitutional right of equality. The fifth question, derived from the former questions, is how the above normative scheme affects the constitutional judicial review of the amendment to the law, in accordance with the constitutional tests of the limitation clause in the Basic Law: Human Dignity and Liberty.

Child Allowances: History and Purpose

  1. As we mentioned, the first question with which the discussion should begin revolves around the essence and objective of the child allowances, as were set in the National Insurance Law. (5755-1995 (hereinafter, the “National Insurance Law”). Because the basis for a discussion on constitutional review of the validity of a law is the status of the right violated, we should begin and by examining if, and to what extent, the eligibility to receive a child allowance is a right that enjoys constitutional protection.
  2. My colleague, Justice Arbel, articulated the purpose of the child allowances as part of the fabric of Israel’s social legislation. To this I would like to add a review of the historic development of the arrangements in the field, a development that sheds light on the ongoing use of the child allowances as a tool for promoting of social policies.
  3. In general, the child allowances were subject to many changes from the time they were first introduced in the format of legislation until the regulation thereof in our time. Generally speaking, a clear process of strengthening the universal element in granting the allowances can be pointed out. The intention is to grant child allowances to each and every family for each of its children, without taking into consideration economic data or other distinguishing criteria (distinct from past practice when they were only granted to some families or some children based on distinguishing criteria).
  4. Before the establishment of the State, payment to parents for their children was made in the form of an increase to the employees’ salary. (See Johnnie Gal, Social Security in Israel, 97 and 102 (2004) (hereinafter, “Gal”)); Abraham Doron “Policy on Child Allowances in Israel” Spotlight on Social Policy Series 1, 2 (2004) (hereinafter, “Doron, the “Allowances Policy” ”)).
  5. After the establishment of the State in 1950, the Kanev Committee submitted the Inter-Ministerial Report on Social Security Planning (1950), which included reference to a “children’s grants” plan (See Abraham Doron, In Defense of Universalism –The Challenges Facing Social Policy in Israel, 128-129 (1995) (on the report and its importance)). The report determined that this plan would only be implemented in the last stage of the introduction of social insurance in Israel because its performance was not economically feasible in the immediate future. Nevertheless, striving to increase the birth rate in Israel, the then prime minister, David Ben-Gurion, introduced a monetary prize to families with ten children and more. (Gal, on p. 103). Starting from the early 1950’s, proposals were made to grant allowances, and in the second half of that decade, the government began to demonstrate preparedness to consider the idea. (Meir Avizohar, Money to All – The Development of Social Security in Israel 67 (1978) (hereinafter, “Avizohar”)).
  1. The first piece of legislation that dealt with child allowances was adopted in 1959 as an amendment to the National Insurance Law. (National Insurance Law (Amendment) (No. 4), 5719-1959 (hereinafter, “Amendment 4”)). The initiator of the legislation was the Minister of Labor, Mordechai Namir (hereinafter, “Namir”). In the background was a mass immigration from Middle Eastern countries that included large families whose breadwinners did not, at the time, adequately integrate into the labor market. The legislative initiative was thus derived from the social-economic gap created between the immigrant families and long established families in Israel, which were characterized by a smaller number of children on average. (Knesset Minutes 27, 2693-2642 (1959); Giora Lotan, Ten Years of National Insurance – An Idea and its Fulfillment 38 (1964)). Some argue that the Wadi Salib events in 1959 were a material catalyst to the enactment of the law (Gal, on p. 103, Avizohar, on p. 68-70) and this appears to have partial support in a discussion that was held in the Knesset (Knesset Minutes 27, 2642 (1959)). More generally, it can be said that the payment of the allowances was the first stage of a process that increased the involvement of the National Insurance Institute in reducing poverty and economic and social gaps in the population. (Ester Sharon, The Child Allowances System in Israel: 1959-1987 Where did it come from and where is it going? 3 (1987) (hereinafter, “Sharon”)).
  2. The allowance payments were consistent, in principle, with the basic principles of national insurance in Israel, in the sense that they were granted on a universal basis, independent of income level. However, the allowance was initially granted only to families with at least four children, and only for children under the age of fourteen. (Michal Ophir and Tami Eliav, Child Allowances in Israel: A Historical View and International Perspective (2005) (hereinafter, “Ophir and Eliav”)). Minister Namir explained that these conditions were imposed for budgetary reasons, and that the aspiration was to lay down an infrastructure that would be expanded gradually. The deliberations on the scope of Amendment 4 were not particularly heated despite reservations on its small scope. Knesset Members supported Amendment 4 and expressed their hope that the terms of eligibility would be expanded in the future, and that it would presently succeed in encouraging births, eradicating poverty and enforcing equality among the various groups in Israeli society. (Knesset Minutes 27, 2667-2680 (1959)).
  3. In 1965 the child allowances were expanded in several respects. First, the allowances were paid for all minor children, with no age distinction (that is, until the age of 18). Second, the allowance paid by the National Insurance Institute was accompanied by an employees’ children allowance that was only paid to salaried employees by their employers for their first three children, and was financed by the National Insurance Institute. Therefore, this allowance, unlike the regular child allowance, was deemed as taxable income. (See: The National Insurance Law (Amendment Number 12), 5725-1965, Statutes 461, 208; The National Insurance Regulations (Employees’ Children Allowance) (Part-Time Employees and Employment Seekers), 5725-1965 which were promulgated by virtue of Sections 31K and 115 of the National Insurance Law, 5714-1953; Gal on p. 103). In addition, in the early 1970s, an additional allowance was introduced for families with four or more children, if a family member served in the security forces (hereinafter, the “Military Veterans Allowance”). This payment was made directly from the National Insurance Institute and was exempt from tax. (Regulations on Grants to Soldiers and their Families, 5730-1970, Regulations 2605, 2180, promulgated by virtue of Section 40(B1)(2) of the Discharged Soldiers Law (Reinstatement in Employment), 5709-1949). In 1975, this payment was expanded to also apply to families with three children. (Regulations on Grants to Soldiers and their Families (Amendment), 5735-1975, Regulations 3298, 1001). Over the years, payments were also made to additional families, who did not fulfill the statutory condition of a military service; ultra-orthodox families received additional payments from the Ministry of Religion and families of new immigrants received such payments from the Jewish Agency. (Gal, on p. 104; Eliav and Ophir, on p. 5-6; Yoram Margaliot “Child Allowances” Berenson Book, Second Volume – Beni Sabra 733, 745 footnote 40 (Editors, Aharon Barak and Haim Berenson, 2000) (hereinafter, “Margaliot”)).
  4. We can therefore summarize that in general, in the first half of the 1970’s, financial support was provided to relatively large families in several formats: first, universal child allowances were given by the National Insurance Institute; second, additional allowances were given in the Jewish sector to families for their children (whether Military Veterans Allowances or other allowances); third, employees’ children allowances were paid to salaried employees by their employers, and were taxed. These mechanisms were added, of course, to other welfare payments to which the families were eligible based on their individual economic condition. Additionally, families with a relatively high income enjoyed tax benefits which took the family size into consideration. However, this benefit was only enjoyed by families with a relatively high income, whose income was taxed. The incompatibility at the time between the various benefits and the understanding that families with many children constitute a more impoverished group together were a catalyst to a reform in the system. (The National Insurance Bill (Amendment Number 12), 5733-1972, Government Bill 1022, 30; The Amendment to the Income Tax Ordinance Bill (Number 18), 5733-1972; The Government Bill 1022, 31; The National Insurance Law (Amendment Number 12), 5733-1973, Statutes 695, 142; Raphael Rotter, The Reform in Child Allowances in Israel (1972); Arieh Nitzan, Twenty Years of National Insurance in Israel (1975) (hereinafter, “Nitzan”)).
  5. The policy with respect to allowances underwent further turmoil following the recommendations of the Ben-Shahar Committee on the subject of the income tax reform in 1975. (Report of the Committee for Tax Reform – Recommendations for Changes to the Direct Tax, 25A-26A (1975)). Pursuant to the committee’s recommendations, the double treatment of the child allowances—within tax law and national insurance law—was discontinued, and it was decided to grant tax-free allowances on a universal basis to all families of salaried and non-salaried employees for all children in the family, starting with the first child, until they reach the age of 18. (National Insurance Law (Amendment Number 17), 5735-1975, Statutes 773, 152; Sharon, on p. 9-11).
  6. The trend of expanding eligibility changed in the 1980’s to the desire to reduce public expenditure. The scope of allowances was reduced. In addition, the child allowances for the first two children, in families of up to three children with a marginal tax rate on the main breadwinner’s salary of at least 50%, were taxed. (Amendment to the Income Tax Ordinance (Number 59) Law, 5744-1984, Statutes 1107, 64; Sharon, on p. 11-12). In 1985 a tax was also imposed on the child allowance for the third child in families with up to three children and the marginal tax rate was reduced. In addition, the universal payment of the child allowance for the first child was revoked, except for low-income families. (The Arrangements Law for an Emergency in the State Economy, 5746-1985, Statutes 1159, 20; Sharon, on p. 12-13). The 1985 arrangement was supposed to remain in effect for only one year, but it “survived” (with various changes pertaining to the income test’s threshold amount) until 1993. (Ophir and Eliav, on p. 8; Sharon, on p. 12-13).
  7. The pendulum swing child allowances policy continued in full force in the 1990’s. At first, the trend of reducing the universality which characterized the granting of the allowances at the end of the last decade continued, and the eligibility of small families not defined as “in need” was significantly reduced. Later, the trend was one of expansion, while strengthening universality in granting the allowances. In this decade, the following changes occurred: the conditioning of eligibility for the allowance on the family size was revoked; the Military Veterans Allowances were gradually cancelled; the allowances for large families were gradually increased. (The Arrangements Law for an Emergency in the State Economy (Amendment Number 15), 5750-1990, Statutes 1328, 188; The Arrangements in the State Economy Law (Legislative Amendments), 5751-1991, Statutes 1351, 125 (Indirect Amendment to the Arrangements Law for an Emergency in the State Economy, 5746-1985); The Income Tax Law (Temporary Order), 5753-192, Statutes 1407, 22 (Indirect Amendment to the Arrangements Law for an Emergency in the State Economy, 5746-1985); The Arrangements in the State Economy Law (Legislative Amendments for Attaining the Budget Goals), 5754-1994, Statutes 1445, 45 (Indirect Amendment to the Discharged Soldiers Law (Reinstatement in Employment), 5709-1949); Dalia Gordon and Tami Eliav “Universality v. Selectivity in the Granting of Child Allowances and Results of Performance Limitations” 50 75, 78 Social Security (1997) (hereinafter, “Gordon and Eliav”)).
  8. The turmoil continued, even more forcefully, in the following decade. In 2001, the child allowance rate for large families was significantly increased—starting with the fifth child. However, shortly thereafter, a gradual cutback began in all allowances, including the child allowances, in order to reduce public expenditure. Another fundamental change that occurred in this period was equalizing the allowance given for each child in the family, irrespective of his birth order. At the same time, the attempt to reinstate the Military Veterans Allowances failed. (See Doron “The Allowances Policy”, on p. 4; Abraham Doron “Multiculturalism and the Erosion of Support for the ‘Welfare State’: The Israeli Experience” Studies on the Revival of Israel 14 55, 63-64 (2004)); Knesset Research and Information Center, Child Allowances in Israel: A Historic Review – an Update 8 (2008)).
  9. The issue before us is related to an additional stage in the development of the policy on child allowances within Amendment No. 113 of the National Insurance Law, which was enacted as part of the Economic Streamlining Law. (Legislative Amendments for Implementation of the Economic Plan for 2009 and 2010), 5769-2009 (hereinafter, the “Amendment”)). As part of the Amendment, the allowances for the second, third and fourth child in the family were gradually increased by 100 shekel per month for each child, and eligibility to receive the full amount of the allowance was made contingent on the vaccination of the children.
  10. This short historical review of the eligibility for child allowances reveals several important things. First and foremost, it demonstrates how eligibility for child allowances has always served as a platform for the promotion of national public objectives (for example, the encouragement of births and reduction of social gaps), which go beyond the narrower purpose of supporting the family’s finances. For example, in a discussion held in the Knesset on Amendment 4, which gave rise to the child allowances for the first time, Minister Namir stated the following:

The law was intended to achieve three goals that are social demographic and economic in nature: a) to ease the difficulties in the social condition of weak parts of society; b) to stop signs of negative trends in our demographic development c) to remove several errors and anomalies in the field of employment and distribution of wages in the factories, in relation to the employees’ family status.” (Knesset Minutes 27, 2639 (1959)).

  1. The legislative history also demonstrates the fact that over the years, the child allowances expressed a different and changing welfare policy. In other words, the tool remained one, but into it were cast various objectives, or at least secondary objectives. The goal of reducing poverty among children hovered, throughout the year, over legislation concerning the child allowances indirectly and directly. However, in each of the periods reviewed, alongside the purpose of eradicating poverty stood additional purposes. In fact, even Amendment 4, which gave birth to the child allowances, was intended to provide a response, according to its legislators, to demographic data regarding births in Israel. An additional purpose at the time was bridging the social gaps created between various groups of immigrants in order to promote their integration in Israel.
  2. The recurring oscillation between the expansion of eligibility for allowances for small families, and its reduction for large families, marks the tension between the perception that, in general, the State’s role is to contribute towards the cost of raising children ,together with their parents (Doron “The Allowances Policy”, on p. 2), and the perception that child allowances provide a way to fulfill other roles the State has taken upon itself, such as reducing unemployment and gaps in society and encouraging births. (Margaliot, on p. 734-754). In practice, we have learned that child allowances constituted, throughout the years, a means of realizing various social and economic goals that were placed at the top of the political agenda in each period. For our purposes, it is important to note the following information: child allowances are supposed to promote the welfare of families raising minor children. However, the child allowances are not paid in correlation with the family’s economic situation (and in this they differ from income assurance payments). (Compare: HCJ 5578/02 Manor v. The Minister of Finance [2004] IsrSC 59(1) 729 (hereinafter, “Manor Case”), in which former President A. Barak referred to the old-age pension and held that unlike the income assurance allowance, this one is not intended to guarantee a dignified minimal existence). At most, it might be said that they are provided according to the estimated needs of families raising children. (Compare: Abraham Doron, The Welfare State in an Age of Change 72 (1987)). Additionally, the purpose of promoting the economic welfare of families who are raising children is not the sole purpose of the allowances.
  3. Thus, it can be determined that in view of the many aspects of eligibility for child allowances, as well as the changes it has undergone through the years, the objective of the allowances is a broad objective of striving to promote the welfare of the children in the Israeli society, as well as to promote the social policy of the government at a given time. This insight is important in continuing the discussion on the legal status of the allowance.

Child Allowances: Legal Rights or Constitutional Rights

  1. Child allowances are currently given by virtue of a law—the National Insurance Law. Does the right to receive child allowances as it they are granted today constitute an exercise of a constitutional right? Like my colleague, Justice Arbel, I too believe that it was not proven before us that this is correct at this time.
  2. The ruling on this issue is relevant to the continuation of the constitutional examination process, since the conditioning of the legal means for exercising the constitutional right is not tantamount to the conditioning of the constitutional right itself. Indeed, without legal means for exercising the constitutional right, the right may remain as an empty normative shell, void of content. There may certainly be situations where either the conditioning or denial of the means to fulfill the constitutional right will amount to a violation of the right itself. However, this should be examined in each and every case. This can be compared to a two-story building: on the upper floor is the constitutional right itself; on the lower floor are the means for its fulfillment. Too severe of an injury to the foundations of the lower floor, by conditioning or otherwise, will result in harm to the upper floor, the floor of the constitutional right, and undermine protection. Thus, the question is whether the petitioners have successfully shown that conditioning eligibility for child allowances amounts to a violation of a constitutional right. Additional examples that illustrate the importance and relevance of this distinction can be found in case law regarding the violation of the right of access to the courts. For example, it has been held that a person does not have a vested right to exercise the right of access to the courts through a specific procedural proceeding. Therefore, limiting the ability to file a class action does not necessarily amount to a violation of the right of access to the court. (See and compare: HCJ 2171/06 Cohen v. The Chairman of the Knesset, paragraphs 21 and 24 (August 29, 2011)).
  3. Child Allowances and the Right of Dignity – Indeed, this Court’s rulings have repeatedly emphasized that the protection of the right to a dignified human existence falls within the scope of the protection of the right of human dignity enshrined in the Basic Law: Human Dignity and Liberty, and that its protection is identical to the protection given to the other basic rights. (HCJ 366/03 The Association for Commitment to Peace and Social Justice v. The Minister of Finance, [2005] IsrSC 60(3) 464, 482-484; HCJ 10662/04 Hassan v. The National Insurance Institute (February 28, 2012), paragraphs 34-36 (hereinafter, “Hassan Case”)). However, a distinction should be drawn between the constitutional right and the legislative and administrative means that are used for its fulfillment. The right to dignified human existence does not have to be fulfilled through the payment of child allowances, and in the present legal situation it is not even clear that this is the purpose for which they are paid. As a matter of policy, and in order to promote various national public objectives, the Israeli legislature has chosen to provide for the welfare of families with children, irrespective of their economic situation.
  4. In legislative conditions in which the State does not provide a means of existence for weakened populations, payment of child allowances may, de facto, guarantee their dignified existence. Nevertheless, at this time, it has not been proven to us that eligibility to receive child allowances was intended to maintain a dignified human existence or that it is essential to its protection, and therefore, under these circumstances, conditioning the eligibility is not in itself conditioning of a constitutional right. Nothing in the aforesaid negates the possibility to prove that, in a specific case, or following other changes in the welfare system in Israel, cutbacks in child allowances will violate the rights of individuals to basic conditions of a dignified existence. As mentioned, this has not been argued before us and was consequently not proven. It should be added that Section 68(c) of the National Insurance Law orders an increase in the regular child allowance payment for the third and fourth child when the parent is eligible for an income assurance allowance or support payments through National Insurance, but the amendment to the law before us has no ramifications on this special increment and does not derogate therefrom.
  5. Child Allowances and the Right to Property – The petitioners also argued that the eligibility for child allowances is a property right protected by the constitutional protection of property under the Basic Law: Human Dignity and Liberty, through application of such protection to “new property.” Indeed, through the years, the term “property” has been attributed a broader and more realistic understanding. Currently, rights vis-à-vis the State (the right to a license, the right to an allowance) are no less important to a person’s financial situation than classic rights of property, and their importance may even exceed that of classic property rights, as demonstrated by the scholar Reich in his classic article on the issue. (Charles Reich, New Property, 73 Yale L. J. 733 (1964)). The legal protection of new property was also recognized in the judgments of this Court. (See HCJ 4806/94 D.S.A. v. The Minister of Finance, [1998] IsrSC 52(2) 193, 200-202; HCJ 4769/95 Menachem v. The Minister of Transport [2002] IsrSC 57(1) 235, 275), which also recognized certain welfare allowances as new property (Manor Case, on p. 739). However, recognizing rights vis-à-vis the State as property cannot be identical in all characteristics to the protection of traditional rights of property. When the State wishes to expropriate a plot of land owned by a person it is a violation of property that requires constitutional justification and is required to satisfy the tests of the limitation clause. It would be improper to apply precisely the same legal regime to a situation in which the State is seeking to reduce eligibility given to a person by the State treasury. The eligibility for child allowance payments for example, expresses, inter alia, the economic and social policy in place at the time the eligibility was granted. Adopting the approach that the scope of eligibility for an allowance as it was set in the past has become a property right in its classical sense, would lead to the conclusion that the State is very limited, more than it should be, in the possibilities available to it to change its social and economic policy. (Compare: Daphne Barak Erez, Administrative Law, Volume A, 50-52 (2010) (Barak Erez, Administrative Law); Daphne Barak Erez, Citizen-Subject-Consumer – Law and Government in a Changing State 32-33 (2012) (hereinafter, “Barak Erez, Citizen-Subject-Consumer”). This perception is contrary to the democratic perception to practical needs, and to the justified recoiling from “sanctifying” the status quo (which occasionally may also reflect unjustified bias toward strong groups that acted in the past to enact laws that benefitted them). Obviously, if the eligibility for child allowances was required for the protection of dignified human existence, this would have been a good reason to impose restrictions on its reduction. In addition, rights to receive allowances from the State must be protected in that they must be granted equally and changes to them must take into consideration legitimate reliance upon them. Furthermore, there may be room for additional distinctions such as a distinction between an allowance based on an insurance mechanism or a feature of savings via mandatory payments that were made over the years (such as an old-age pension; see Manor Case, on p. 739), and an allowance that was granted in the form of a one-time grant (compare Daphne Barak Erez “The Defense of Reliance in the Administrative Law” Mishpatim 27, 17 (1996); HCJ 3734/11 Haim Dudian v. The Knesset of Israel, paragraphs 24-25, (August 15, 2012)). In any event, the argument that “what was will be”, in itself, cannot be sufficient.
  6. To emphasize further, holding that there is no constitutional right to receive support from the State in the form of child allowances, does not mean that this eligibility is not significant. Moreover, once the State has chosen to pay child allowances under law, it is required to do so in a manner that complies with constitutional standards and in this context to ensure, among other things, that payment of the allowances will be made equally and indiscriminately (as distinct of course, from the setting of legitimate conditions to the receipt of the allowances), as will be explained below.
  7. As Justice Arbel mentioned, the argument regarding violation of rights was also raised before us with a special emphasis on an alleged violation of the rights of the children for which the allowances are to be paid, separately from their parents’ rights. This argument is supported by the current perception that recognizes children’s rights and does not merely support a paternalistic protection of their interests. (Compare: CA 2266/93 John Doe, Minor v. John Doe [1995] IsrSC 49(1) 221, 251-255; Yehiel S. Kaplan “The Child’s Rights in Israeli Case Law – The Beginning of the Transition from Paternalism to Autonomy” Hamishpat 7 303 (2002)). This development is indeed very significant. Nonetheless, under the circumstances of this case, it cannot change the framework of the discussion. First, it is important to note that the distinction between the rights of children and protecting their best interests without asking their opinion is important in situations where it is possible to consider the child’s autonomy of will. However, our case focuses on young infants who, undisputedly, cannot take an autonomous and rational stance on the question of whether to be vaccinated. It should be emphasized in this context that the statutory scheme explicitly orders the continued payment of the allowance even if the children were not vaccinated, once the early infancy period proper for vaccination passes. Second, the petitioners’ argument regarding the amendment’s violation of the child’s rights was made generally without stating which of the rights has been violated. The discussion we conducted clarifies that the contingent reduction of the child allowances does not violate, in itself, a constitutional right, including constitutional rights of children (unless it will be invalid for another reason, such as discrimination, an issue that will be examined separately below). To a certain extent, the argument of a violation of the children’s rights in this case wishes to repeat the argument regarding the violation of the parents’ autonomy to make decisions with respect to their children’s best interests. This tension frequently underlies decisions on the best interests of children and repeatedly arises, for example, in relation to decisions regarding the children’s education. (Compare: Yoram Rabin, The Right of Education 121-124 (2002)).

The Objective of the Vaccination Requirement: Between Rights and the Public Interest

  1. Based on all that has been said thus far with relation to the legal status of the child allowances and the objective underlying them, it is necessary to address the second question regarding the objective of the Amendment that conditions part of the eligibility for the allowance on vaccinating the children.
  2. The policy on the vaccination of young children is currently considered a very important tool in the protection of children’s health – both from the aspect of each child’s right to good health and the aspect of the public interest in eradicating epidemics which claimed many victims in the past. (See for example: David E. Bloom, David Canning & Mark Weston, The Value of Vaccination, 6 World Economics 15 (2005); Saad B. Omer and others, Vaccine Refusal, Mandatory Immunization, and the Risks of Vaccine-Preventable Diseases, 360(19) New England J. Medicine 1981 (2009)). The State of Israel has excelled since its establishment in operating Family Health Centers, which were an important element in ensuring the population’s health. This public health operation ensured the vaccination of children, for their benefit and for the benefit of the population as a whole.
  3. Through the years, criticism was voiced against the sweeping policy of child vaccination. Some parents refrain from vaccinating their children for various reasons—both because of a belief that vaccinations are dangerous to children’s health and because of a position that prefers “natural” immunization, acquired over the years via “natural” contraction of diseases. So long as those refraining from vaccinations are a minority, choosing this alternative is ostensibly a rational alternative for the relevant persons because of the effect known as “herd immunization;” that is, the phenomenon wherein those who are not vaccinated are in fact protected from contracting diseases when most of the people around them are properly vaccinated. Thus, there is a risk of free riders here, and if it increases it may eventually compromise “herd immunity,” which weakens as the rate of non-vaccinated persons rises. In fact, the decision to vaccinate has characteristics of the “prisoner’s dilemma:” it is a decision that must be made in conditions of uncertainty with regard to the acts of others, and whose benefit from the perspective of the individual also depends on the behavior of such others. Individuals facing the decision whether to be vaccinated will always tend not be vaccinated (provided that others are being vaccinated), purely out of promotion of self-interest. This is a classic case of a “market failure” that justifies intervention. (See also Christine Parkins, Protecting the Herd: A Public Health, Economics, and Legal Argument for Taxing Parents Who Opt-Out of Mandatory Childhood Vaccinations, 21 S. Cal. Interdisc. L. J. 437 (2011)). De facto, there is a decline in child vaccination. The professional opinion of the Ministry of Health, supported by clear professional opinions on the matter, is that the decline in child vaccination constitutes a health risk, both to the children themselves and to the population as a whole (due to the risk of contracting diseases from children who were not vaccinated and later contract serious diseases).
  4. The new Amendment to the law was intended to provide a response to the problem presented above. This problem is also present in other countries, and a spectrum of responses to situations of non-vaccination of children can be pointed to. (See in general: Daniel Salmon and others, Compulsory Vaccination and Conscientious or Philosophical Exemptions: Past, Present and Future, 367 Lancet 436 (2006)). Among the well-known examples, the United States and France represent a rigid approach to the enforcement of the vaccination obligation. In France, the Code of Public Health (Code de la Sante Publique) states that parents and guardians of children are personally responsible for their vaccination, and proof of proper vaccination must be presented upon the child’s acceptance to an educational institution. (Section L3111-2 of the code). Alongside the aforesaid obligation, criminal sanctions of up to six months imprisonment and a fine were set forth. (Section L3116-4 of the code). A mandatory vaccination policy is also common in the United States. The means employed, as well as the scope of the limited exemptions granted on religious freedom or freedom of conscience grounds, vary between the different states, as these issues are regulated on a state, and not a federal, basis. However, it appears that a central means used is the imposition of a limitation on the enrolment of children in schools when they are not vaccinated in accordance with the basic vaccination plan, because of the concern that others will be infected. Constitutional petitions that challenged laws that imposed vaccination obligations were rejected, based on the recognition of the importance of vaccinations to public health. (See Jacobson v. Massachusetts, 197 U.S. 11 (1905) (a general discussion of the vaccination obligation); Zucht v. King, 260 US 174, 176-77 (1922) (a specific discussion on the conditioning of school enrollment on vaccination). Alongside the aforesaid, additional sanctions were used over the years, including setting a statutory vaccination obligation whose violation entails a fine and cutbacks in municipal education budgets. In the city of New York, for example, it was decided to impose fines on schools that accept unvaccinated children, even when they fall within one of the exceptions that allow parents not to vaccinate their children. The fine is imposed for each day in which an unvaccinated child was present on school grounds. In this manner, the city of New York wished to create an incentive for parents to vaccinate their children, since failing to do so compromises the school’s budget and the level of education it is able to provide. (See further: Alan R Hinman, Walter A Orenstein, Don E Williamson & Denton Darrington, Childhood Immunization: Laws That Work, 30 J. L. Med. & Ethics 122, 123 (2002); Gary L Freed, Victoria A Freeman & Alice Mauskopf, Enforcement of Age-Appropriate Immunization Laws, 14(2) Am. J. Prev. Med. 118 (1998); D. Isaacs, H. A. Kilham & H. Marshall, Should Routine Childhood Vaccinations be Compulsory?, J Pediatr. Child Health 40(7) 392, 395 (2004); Anthony Ciolli, Religious & Philosophical Exemptions to Mandatory School Vaccinations: Who Should Bear the Costs to Society?, 74 Mo. L. Rev. 287 (2009); Ross Silverman, Litigation, Regulation, and Education – Protecting the Public's Health through Childhood Immunization, 360(24) New England J. Medicine 2500 (2009)).
  5. Unlike in the United States, there is no norm of mandatory vaccination as a condition to the acceptance of children to school in Canada. In fact, only two provinces of Canada, Ontario and New Brunswick, have a statutory vaccination requirement. Nevertheless, an inspection of the education legislation of Ontario shows that alongside the requirement to vaccinate children as a precondition to their enrollment in the education system, a fine of up to $1,000 is also imposed on parents who fail to vaccinate their children. (Education Act, SNB 1997, c E-1.12, s 10; Immunization of School Pupils Act, RSO 1990, c I.1, s 3-4).
  6. A different approach prevails in Australia, where monetary incentives are given to parents who respond to the vaccination plan. This is, to a certain extent, in the spirit of the solution chosen by the Israeli legislator. This approach is recognized in academic literature as more respectful of the parents’ autonomy, and ethically appropriate, insofar as it does not endanger the lion’s share of welfare payments for children. (See David Isaacs, An Ethical Framework for Public Health Immunisation Programs, 23(5-6) NSW Public Health Bulletin 111,114 (2012).
  7. The comparative law was reviewed merely to illustrate the variety of means employed by other legal systems in a similar context. Obviously, these examples themselves cannot dictate the outcome. However, they emphasize several points that ought to be discussed. First, they show that the issue of child vaccination and imposing sanctions in this context (even when they may indirectly harm the children themselves) are also present in other systems to promote the welfare of the children themselves and the welfare of the public. Second, other systems went as far as imposing sanctions, which may be deemed harsher than those methods adopted by the Israeli legislature. These sanctions may indeed serve more closely the purpose of achieving the result of vaccinating children (due to their weight), but they simultaneously entail more severe harms to the children and their parents (including the imposition of fines or prevention of the children’s studies in educational institutions). I will mention these alternatives again when addressing the limitation clause.
  8. And now: the Amendment discussed before us was intended to achieve a double purpose of protecting the health of infants, for whom contracting the diseases against which the vaccine protects may be dangerous and at times even lethal, and protecting public health as a matter of national medical policy through the creation of  “herd immunity”. This double purpose will also be important for our later discussion regarding the limitation clause. At this point it can also be said that the double purpose of the law does not mandate a direct confrontation with the discussion on the limits of paternalism. As is known, the classification of a legal rule as paternalistic is made through the prism of the grounds underlying it. Therefore, the more the legal rule intervenes in the individual’s autonomy of will for the sole purpose of protecting him and his welfare from his own actions, the more likely we are faced with a paternalistic rule. More specifically, in our case we have a paternalistic rule which intervenes in the parents’ autonomy of will in order to stop them from making a mistake, as the issue is perceived by the Ministry of Health. The question of the appropriate limits of paternalism has been extensively discussed and this framework is too narrow to discuss it. (See, for example: John Stuart Mill, On Liberty (Arieh Simon, Translator, 1946); Peter De Marneffe, Avoiding Paternalism, 34(1) Philosophy and Public Affairs 68 (2006); Gerald Dworkin, Moral Paternalism, 24(3) Law and Philosophy 305 (2005)). For purposes of the current discussion it is important to state on this issue the following two points. First, it is evident that those engaged in the legislative work were aware of the difficulties caused by over-intervention in the decisions of individuals. Thus, for example, the drafters of the law refrained from setting a statutory vaccination requirement, the breach of which entails a punitive sanction; instead, they were satisfied with the creation of an economic incentives scheme, which leaves parents a wider array of choices. The fact that it is only the increase in the allowances that is made contingent on the vaccination of the children, while leaving the base allowance intact suggests the same. Second, it is certainly doubtful whether we have before us a paternalistic rule in the full sense of the word, considering that the Amendment was intended not only to protect the children and their parents from themselves, but also to protect the general public against the outbreak of diseases. It seems that the duty of the Ministry of Health to institute preventive measures to eradicate diseases that threaten public health cannot be disputed.
  9. Moreover, since the Amendment was intended to promote the protection of the health of children in the State of Israel, it should not only be deemed as a means that violates rights (in the name of an important public interest), as the petitioners argued, but also as a means intended to promote rights in a positive manner—in this case, the children’s right to health. The above fits in with the general perception of Basic Law: Human Dignity and Liberty, pursuant to which the protection of basic rights is not merely reduced to a negative protection against the damaging power of government, but also extends to a positive protection which reflects the government’s duty to operate in an active manner for the protection of basic rights. While according to Section 2 of the Basic Law: Human Dignity and Liberty “[t]here shall be no violation of the life, body or dignity of any person as such” (and here the negative protection of these rights is expressed), according to Section 4 of Basic Law: Human Dignity and Liberty “[a]ll persons are entitled to protection of their life, body and dignity (in other words, the government is also required to positively promote these rights).” Although the question regarding the scope of the constitutional right to health has yet to be decided, there is no doubt that striving to guarantee basic conditions of good health falls within the boundaries of the right to human dignity. In addition, it can be deemed as a derivative of the right to life and of the protection of the person’s body. (Compare: Eyal Gross “Health in Israel: Right or Product”, Economic, Social and Cultural Rights in Israel (Yoram Rabin and Yuval Shani, Editors, 2004); LCA 4905/98 Gamzo v. Yesha’ayahu [2001] IsrSC 55(3) 360, 375-376; HCJ 3071/05 Luzon v. The State of Israel (July 28, 2008), in paragraphs 9-17; HCJ 11044/04 Solometkin v. The Minister of Health (June 27, 2011), in paragraphs 11-16). Legislation seeking to create incentives for child vaccination is legislation that falls not only into the category of laws that limit rights, but also that of promoting rights in general and children’s rights in particular. Section 4 of the Basic Law expresses a clear position that rejects the perception that the State is at its best when it does not intervene. Article 25 of the Convention on the Rights of the Child, 1989 also states the obligation of the member states to act for the promotion of children’s health, including “to develop preventive health care.” (Article 25(6)).

Conditioning of Rights: The Normative Framework

  1. The third question of those I mentioned in the beginning is the legal question at the heart of the petition: to what extent can conditions be imposed on rights vis-à-vis the State and more specifically, is it possible to condition rights on requirements which the recipient of the right is required to fulfill?  What is the supposed novelty of setting conditions? The law frequently defines rights and eligibilities as such that include restrictions and conditions to their fulfillment, either paternalistic conditions seeking to protect the holder of the right from himself or conditions seeking to protect the public interest. However, the other side of the coin is that imposing conditions on rights raises a concern of weakening those specific rights and eroding the concept of a right until it is turned into a benefit given by the grace of government.
  2. An important distinction that should be drawn at the outset is the distinction between constitutional rights and legal rights. The main concern regarding the conditioning of rights pertains to the conditioning of constitutional basic rights. The liberal doctrine of rights is based on the perception that constitutional basic rights are the individual’s shield against government’s power, and thus they are supposed to be, in the usual case, autonomous of any and all limitations. The history of the democratic fight for rights is tied to the perception that rights are also conferred on those who are not perceived as “normative persons,” violators of law, and those who are not deemed, ever or at the time, to be “model citizens”. On the contrary, many battles for rights were shouldered by those whose opinions outraged others and were a thorn in the side of people in authority.
  3. Does this mean that conditions may never be imposed on constitutional rights? In fact, since I have reached the conclusion that payment of child allowances does not reflect, at least for the time being, a protection of a constitutional right, I am no longer required to answer this question directly, and therefore I will address it relatively briefly. In general, the position regarding the setting of conditions on the exercise of constitutional rights should be suspicious and minimizing. However, attachment of conditions to the exercise of a constitutional right cannot be rejected at the outset and in advance (as distinct from conditions aimed at denying the constitutional right itself), if only because of the perception that rights are relative for the most part, and not absolute, as indicated by the limitation clauses included in the basic laws. For example, exercising the right of access to courts can be made contingent upon payment of a fee (subject to exceptions guaranteeing that the payment of the fee does not bar persons without means from conducting legal proceedings). (See for example, LCA 3899/04 The State of Israel v. Even Zohar [2006] IsrSC 61(1) 301, 319-321; LCA 2146/04 The State of Israel v. The Estate of The Late Basel Naim Ibrahim [2004] IsrSC 58(5) 865, 868; M.C.M. 457/01 Karlitz v. The Officer of the Elections for the City of Beer Sheva 1998 [2001] IsrSC 55(3) 869, 872)). Similarly, the income assurance allowance, which is generally the legal manifestation of the constitutional right to a dignified human existence, can be contingent upon the requirement to “exhaust earning capacity.” In both cases, the conditions are not “foreign” to the purpose of the relevant rights considering that the payment of a fee assists in making sure that the use of the right of access to the courts will not lead to inefficient use of the important public resource of the judicial system, and that the requirement to exhaust earning capacity contributes to the proper use of the limited resource of support for those who cannot ensure their basic sustenance.
  4. In any event, the case before us falls within a different category: the conditioning of legal rights vis-à-vis the State (by virtue of legislation, as distinct from super-statutory constitutional basic rights). Because the conferral of rights pursuant to the law is supposed to also serve public interests and public policy, the conferral of this type of right is often accompanied by conditions. Below I will refer to standards which should guide the legislature, and later the court, in outlining the proper framework for the conditioning of legal rights.
  5. Presumably, the conditioning of rights available to individuals vis-à-vis the State does not necessarily raise a constitutional difficulty. We should remember that the law often defines rights and eligibilities as such that include restrictions on and conditions to their fulfillment. The aforesaid notwithstanding, in practice the imposition of conditions on legal rights may also be problematic on the constitutional level, when the essence of the condition is a waiver of a constitutional right. For example, conditioning of a legal right, such as eligibility for an allowance, on the recipient’s waiver of his right to freedom of speech or his right to freedom of religion and conscience is problematic even though, theoretically, the government may choose not to grant such an allowance at all. The reason for this is concern about an indirect limitation of constitutional rights. In American constitutional law, the accepted term for discussing the problem of eligibilities given by the government based on a (supposedly voluntary) waiver of constitutional rights is the unconstitutional conditions doctrine. (See for example: Note, Another Look at Unconstitutional Conditions, 117 U. Pa. L. Rev. 144 (1968); Allen Redlich, Unconstitutional Conditions on Welfare Eligibility, Wis. L. Rev. 450 (1970); Richard A Epstein, Unconstitutional Conditions, State Power and the Limits of Consent, 102 Harv. L. Rev. 5 (1988); Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413 (1989); Cass Sunstein, Is There An Unconstitutional Conditions Doctrine?, 26 San Diego L. Rev. 337 (1989); Brooks R. Fundenberg, Unconstitutional Conditions and Greater Powers: A Separability Approach, 43 UCLA L. Rev. 371 (1995); Daniel A. Farber, Another View of the Quamire: Unconstitutional Conditions and Contract Theory, 33 Fla. ST U. L. Rev. 913 (2006); Renee Lettow Lerner, Unconstitutional Conditions, Germaneness, and Institutional Review Board, 101 Nw. U. L. Rev. 775 (2007); Philip Hamburger, Unconstitutional Conditions: The Irrelevance of Consent, 98 Va. L. Rev. 479 (2012)). We are not bound, of course, by the details of this doctrine, and some aspects of its scope and application are still in dispute in American law itself. Nevertheless, it does indicate the caution necessary in conditioning legal eligibilities, which may indirectly violate constitutional rights. In this spirit, and without exhausting discussion in the matter, I wish to present primary relevant considerations in examining such conditioning. As I will clarify below, these considerations will ultimately be included in the formal constitutional examination performed within the context of the limitation clause.
  6. Relevance of the Condition and its Affinity to Eligibility – Essentially, conditions to eligibility are supposed to have a relevant connection to the policy the eligibility is intended to promote. In order to clarify the nature of the discussion, let us consider two hypothetical examples that may be discussed in relation to framing the eligibility for income assurance allowances: first, conditioning eligibility for receipt of the allowance on the applicant not having a bad traffic record; second, conditioning eligibility on the applicant’s active desire to re-join the employment circle by visiting the employment bureau each week. Our intuition suggests that the second condition is legitimate, as it is consistent with the purpose of the income assurance allowance and it comports with the public interest underlying it—the re-integration of a person who has been excluded from the employment circle, while providing a last residual protective net on the way there. (Hassan Case, in paragraphs 6-7 and 57). The translation of this intuition into a legal principle tells us that the condition should derive from the same legal circle within which the conditioned right is operated. In other words, the purpose of the condition and the public interest promoted through it must be derived from the same normative field in which the conditioned right is rooted. The weaker the connection between the two becomes, the more the conditioning becomes constitutionally illegitimate. For example, although there is no dispute that eradicating driving violations and creating a system of incentives to promote this are desirable from perspective, these have absolutely nothing to do with eligibility for income assurance allowance. The purposes underlying each of these arrangements are foreign to one another. This foreignness indicates the arbitrariness of the conditioning and the flaw in combining them with each other. Sometimes, the question of the relevance of the conditioning may also be examined with respect to the question of whether the condition is paternalistic and seeking to promote the best interests of the holder of the right himself, or a condition seeking only to protect a wide public interest. Sometimes, of course, the conditioning of the right may encapsulate more than one reason within it.
  7. An auxiliary test that may assist in examining the nature of the affinity and the connection between the purpose of the condition and the conditioned right focuses on the date the condition was imposed and the legislative history behind it. Generally, insofar as the condition was imposed on or about the time the right was granted, the conditioning will be classified as part of the definition of the right and delineation of its scope. Insofar as the condition is added, or should we say “pasted,” at a later date, adding it should be deemed as external conditioning of the normative content of the right. This is of course merely an auxiliary test and no more. Situations can also be conceived where a new statutory eligibility is “born” with an attached foreign and inappropriate condition.
  8. Without making a final determination, an example seemingly close to our case is the birth grant given by the State, which is contingent on the mother having chosen to give birth in a hospital and not in her home. (Sections 42-43 of the National Insurance Law). In this context too, the State wishes to help the mother but at the same time promotes a public policy that the delivery will take place in the hospital, which is, as the State and professionals perceive it, in the best interests of the mother and the newborn as well as in the best interests of the public as a whole. In addition, the condition attached to the eligibility is in affinity the general purpose of the eligibility, promoting the welfare of the mother and her family.
  9. Voluntary Choice – A distinction must be made between voluntary conditions, which give the individual freedom of choice, and conditions that refer to inherent identity characteristics that a person is unable to change or that it would be inappropriate to require him to change (such as religious or national origin). The importance of this consideration cannot be exaggerated. Conditioning rights on a requirement that contradicts identity characteristics will, by its nature, cause difficulties, and raise a heavy suspicion of discrimination. Obviously, between the extreme situations of full choice on the one hand, and coercion and lack of choice on the other hand, there may be interim situations in which the incentives that accompany the choice affect whether the condition violates a right. 
  10. Scope of Conditioning – Another consideration that should be taken into account concerns the scope of conditioning: that is, the extent of exposure of the right to the restricting power of the condition. In this context, both the scope of coverage of the condition and whether it applies to the entire right or perhaps only to part of it are significant. Similarly, it may be examined whether the condition pertains to an addition to an existing eligibility, or perhaps results in the derogation therefrom.

Imposition of Conditions on Rights: From the General to the Particular

  1. The application of these standards to the case before us makes clear that the Amendment in our case does not create an arbitrary connection between a legal right and the promotion of a public interest.
  2. Pertinence of the Condition and its Affinity to Eligibility – The State grants child allowances to everyone (in other words, over and above what is required for the purpose of guaranteeing the right to a dignified human existence of children who grow up in conditions of poverty) in order to promote the welfare of the families who raise children and the children who are raised by them in particular, including the promotion of their health, alongside other public purposes. Thus, in this case, the conferral of the right to receive a child allowance was made contingent upon a condition that has a direct and unequivocal affinity to the purpose for which the right was conferred in the first place; the condition is based on an opinion of independent professionals who indicate that the best interests of children and of society require that they be vaccinated. In these circumstances, in which the right to the allowance is contingent upon a condition that is directly and clearly entwined with the best interests of its beneficiary, it is not difficult to hold that the condition is pertinent. The child allowances are not only granted in order to provide for the children, but for their welfare, including other basic rights they have such as education and health.
  3. Indeed, an inspection of the comparative law may serve as a basis for the argument that a condition that links the acceptance of children to schools and their vaccination expresses a stronger affinity between the condition and the right than as distinguished in our case where eligibility for child allowances was made contingent upon their vaccination. However, in practice, and following further inspection, this argument is unconvincing. De facto, the only difference between the American conditioning model and the Israeli conditioning model is the time the children’s vaccination condition was imposed, not the intensity of the link between the condition and the eligibility. Both models see the need to protect the children themselves and the need to protect those who come into daily contact with them. However, the Israeli legislator wished to move up the date of the condition that incentivized children’s vaccination as a preventive measure, and thereby make redundant the future dilemma with which health policy makers in the United States and Canada are dealing, namely, when parents are required to enroll their children in the education system. In addition, earlier vaccination of infants appears to be more effective from a preventive medicine standpoint, and if so, it is more logical to create an incentive to vaccinate the children at an earlier stage, prior to sending them to the education system. In fact, insofar as the main purpose is to prevent the infection of other children, it makes sense to make the connection to the time of entrance into the educational institution. However, insofar as the purpose is the promotion of the best interests of the children themselves, an earlier date is preferable.
  4. Some of the arguments advanced by petitioners attempted to undermine the assumption that conditioning the allowances indeed promotes the children’s health and their general welfare. One argument made before us on this issue is that there are views that vaccination of children does not serve their best interests and that the route of natural immunity is preferable. A second argument raised in this context is that conditioning the right to child allowance constitutes “double punishment” of the relevant children. First, they are not being vaccinated and thus their health is compromised. Second, the State does not pay their parents the full child allowance amount, and thus their welfare is also harmed. These arguments should be dismissed. The first argument, pertaining to the uselessness of vaccination for the children’s health cannot be accepted because of the factual basis underlying it. The medical opinion underlying the vaccination policy is a solid one supported by many studies. The petitioners’ arguments regarding the existence of other approaches have their due respect, but the formulation of national policy is supposed to be based on the position of the professional bodies of the government, founded on studies and examinations. Nothing in the petitioners’ arguments undermines the firm basis underlying the policy, at least for the time being. The second argument should also be dismissed. This argument is based on the assumption that conditioning part of the eligibility for child allowances on vaccinating the children is merely a sanction and cannot direct behavior. This assumption remains unsubstantiated. Moreover, the Amendment was enacted in a format that inherently attests that it was intended to direct behavior. The reduction of child allowances is not imposed as a sanction in an irreversible manner. This reduction applies only during the period in which the parents are supposed to vaccinate the child with the vaccine they avoided. During the vaccination period the parents receive several notices and warnings on the consequence of failure to vaccinate the children. Furthermore, once the suitable period for giving the vaccine passes, the allowance returns to its regular amount. Thus, it may be said that the Amendment is phrased in a manner intended to create a means for directing behavior, and at least at this stage, there is no reason to believe that it will not succeed to do so. In any event, this cannot be pre-assumed.
  5. Voluntary Choice – The Amendment to the law assumes, in practice, that the impediment to vaccinating children derives from the parents’ choice not to vaccinate, and not from the fact that the State does not guarantee reasonable access for the entire population to this essential service, in terms of both location and cost. The aforesaid is particularly important in view of the fact that one of the petitions before us was filed by Adala Center, which alleged insufficient dispersion of Family Health Center services among the Bedouins in the Negev region. If indeed there was no reasonable access to the vaccination services for the entire population, then the Amendment is problematic because this would mean the denial of eligibility for child allowances is in fact arbitrary and does not in practice promote the purpose of the Amendment. In order to avoid this inappropriate result, the Amendment should be interpreted pursuant to its objective and denial of the eligibility for child allowances should only apply in situations where parents choose not to vaccinate their children, and not in situations in which the parents refrain from doing so due to lack of reasonable access to health services. De facto, the State’s arguments painted a positive picture of improvement in the level of accessibility to Family Health Center services in the Negev region, and the State is presumed to continue to act in this direction. In addition, the State has undertaken, both in writing and orally, that the vaccination fee will be cancelled, so that the cost of vaccination will not be a barrier for those who lack financial means.
  6. Scope of Conditioning – conditioning eligibility for child allowances on the children’s vaccination does not apply to the entire allowance but only to part of it. Failure to fulfill the condition does not deny the entire child allowance (like it does not deny all other means that the social laws in Israel provide for the fulfillment of the child’s right to a dignified existence).
  7. Thus, it may be concluded, at this time, that the imposition of conditions on eligibilities relies on solid foundations, at least when (like in the case before us) the eligibilities discussed are eligibilities pursuant to a law that promote public policy (as distinguished from constitutional rights), the condition set is related to the purpose of granting the eligibility, the fulfillment of the condition depends on the free choice of the relevant party, and especially because the conditioning does not apply to the entire eligibility.

Equality in Granting Eligibilities

  1. The fourth question that should be examined, according to the order of things, also relates to the content of the conditioning, and in this context focuses on the level of equality. The petitioners argue that the Amendment to the law discriminates in issue granting full payment of child allowances between those who vaccinate their children and those who do not vaccinate their children. Is this really the case?
  2. My colleague, Justice Arbel, accepts the petitioners’ argument on this matter, based on the assumption that the condition placed upon the allowance is foreign both to the structure of the allowance and to its purposes (paragraph 49 of the opinion of Justice Arbel). In my opinion, the starting point for the discussion on this issue should be different. In fact, as the discussion on the history of the child allowances makes clear, these allowances embodied several purposes throughout the years, and they are seeking, inter alia, to promote the welfare of children in Israel in general. Examining things from this perspective, it cannot be said that a condition that promotes the vaccination of children in Israel, and thus protects their health (according to the prevailing perceptions in the scientific community), is a condition foreign to the purpose of the allowances (as I explained above in paragraph 48).
  3. Furthermore, it is also possible to observe the matter through a comparison of the children who receive vaccinations and those who are denied vaccinations by their parents. The conditioning of the child allowances expresses the State’s commitment to also care for the latter.
  4. On a wider perspective, an important question hovering in the background is whether whenever the law distinguishes between people or groups, it is right to deem the distinction as a violation of the right to equality, and then to examine through the limitation clause; or whether there are “relevant” distinctions that would not be considered, a priori, a violation of the right to equality. For example, does the payment of child allowances only to parents of children constitute justifiable “discrimination” because it is done for a proper cause and satisfies all other conditions of the limitation clause, or is it a distinction that does not amount to a violation of the right to equality from the outset?
  5. Ultimately, I am of the opinion that a ruling on these issues is not necessary in the case before us because a link exists between the distinction made and the relevant individuals’ autonomy of will. According to the judgments of this Court, the right of equality is constitutionally protected as part of the right to human dignity in those situations where the distinction projects on the individual’s autonomy of will. (See HCJ 6427/02 The Movement for Quality Government v. The Knesset [2006] IsrSC 61(1) 619, 680-691; HCJ 7052/03 Adala Legal Center for the Rights of the Arab Minority in Israel v. The Minister of Interior [2006] IsrSC 61(2) 202, 303-304). Since the Amendment has ramifications for decisions that express the parent’s autonomy of will with regard to the upbringing of their children, even if the Amendment does not violate the autonomy of will, the fact that underlying the distinction is the autonomous choice of the relevant individuals justifies holding that the Amendment violates equality in a manner that requires to examine whether it satisfies the limitation clause.
  6. It is important to add that it cannot be said, based on the data placed before us, that the Amendment imposes a discriminating reality that wrongfully distinguishes between infants from the Jewish sector and infants from the Bedouin sector. Against this argument made by Adala Center the State presented figures (updated as of 2009) in which the rate of unvaccinated Bedouin children (nine percent) is similar to the rate of  unvaccinated Jewish children (seven percent), insofar as we are referring to children between the ages of two and five ( three percent in the Arab sector). In any event, the Amendment should be interpreted in a way that excludes from the condition anyone who wishes to vaccinate his children, but to whom vaccination services are not made reasonably accessible by the State. In this sense, the petitioners’ path will be open to argue against the implementation of the law (as distinct from against its constitutionality) insofar as the access to the vaccination services is not adequately available.

The Amendment to the Law through the Limitation Clause

  1. Based on the above, I wish to discuss the fifth and concluding question: does the Amendment include a violation of a constitutional right, and does this violation, if any, satisfy the constitutional tests of the limitation clause.
  2. Like my colleague Justice Arbel, I showed that the majority of the petitioners’ arguments regarding the violation of constitutional rights are unconvincing. In the absence of a violation of a constitutional right, the discussion ends before it begins, and all that remains is criticism (right or wrong) of a public policy that was embodied in an act of legislation and whose place is in the public sphere. The eligibility for child allowances is part of a welfare policy currently serving the best interests of many children across the country in the immediate future, as well as the best interests of the public as a whole in the long term. However, there is no constitutional right to receive it in one specific form. The State can also care for the welfare of people in general and people living in poverty by paying other allowances and introducing changes to the current allowance policy, which is not “sacred” or “set in stone.” No factual foundation has been laid out before us for the argument that child allowances are essential for the dignified human existence of their recipients, and even more so, no factual foundation has been laid out before us to establish that those who avoid vaccinating their children are people who particularly need these allowances. It should be further noted that in most cases (except when the unvaccinated child is an only child), even parents who refrain from vaccinating their children, whatever their motivations might be, are left with the eligibility for the basic child allowance. They are not denied the latter, but only the increase provided by the Amendment. The strongest argument for a violation of a constitutional right in this case was the argument on the alleged violation of the right to equality. Even if a violation of the right of equality was found, it would satisfy the tests of the limitation clause (pursuant to Section 8 of the Basic Law: Human Dignity and Liberty), as I will demonstrate briefly.
  3. Under the circumstances of this case, it can easily be seen that the first three conditions of the limitation clause are satisfied almost prima facie. The classification of the eligibility for child allowances was set in an explicit amendment to the law. The purpose of the law is proper, both in the with respect to the right to health of each one of the children to be vaccinated and with respect to the sense of the national interest of public health. In any case, legislation that promotes such important purposes befits the values of the State of Israel as a state that wishes to promote the welfare of its citizens. Thus, it remains to discuss the question of proportionality, which focuses on the means chosen to achieve the purpose. A proper purpose is not enough; the means chosen to achieve the purpose must also be appropriate, suitable and proportionate.
  4. The first sub-test of proportionality is the rational means test that asks, whether the means chosen are indeed expected to achieve the purpose of the legislation. The answer to this question is positive, as we stated earlier, at least for the time being. A legislative practice of granting monetary incentives (positive and negative) to promote various behaviors, by conditioning various eligibilities (in the areas of taxes and welfare) is a common matter. Underlying each and every one of these acts of legislation is the assumption that incentives direct behavior. There is no reason to believe that things will be different in our case. If different information accumulates later on, the legislature will be required to assess it.
  5. At most, it may be said that the application of the first sub-test of proportionality in the case before us presents the following paradox: the means used (conditioning the eligibility on an act of vaccination) is expected to achieve the purpose, but may achieve it less effectively than harsher means (such as prohibiting acceptance of unvaccinated students to educational institutions). This is why the petitioners characterize the means used as some kind of a “sanction” and not as means of enforcement: because it cannot be guaranteed in advance that the parents will respond to the incentive the conditioning seeks to create. Using a harsher means could have guaranteed the achievement of the purpose with more certainty, but it would have come at the price of a more severe violation of rights, and in this sense would have created more difficulty within the framework of the second sub-test and the third sub-test of proportionality, discussed below.
  6. The second sub-test of proportionality examines whether the chosen means are the less harmful means. It seems to me that the case before us is a clear instance where the act of legislation is based on a careful and meticulous thinking process with regard to the means chosen as compared with other possible alternatives. In the course of deliberation, arguments pointed out alternative methods that were used elsewhere or that might have been used, such as preventing unvaccinated children from studying in educational institutions (as in France and the United States) and imposing punitive sanctions, .It can easily be seen that the majority of these means are actually harsher and more harmful than the route chosen by the Israeli legislature. Preventing unvaccinated children from studying in educational institutions is a very harsh step with regards to the scope of the damage to the children. It also comes at a relatively late point in time considering the optimal age for vaccination according to the policy of the Ministry of Health. Imposing a punitive sanction on people who choose not to vaccinate their children is certainly an offensive step, which does not respect those who are deeply convinced that the vaccination will harm their children. Thus, only the tool of advocacy remains, whose value cannot be exaggerated in this sensitive context in which the parents’ level of conviction is essential to obtaining the goal of wide-scope vaccination. (Compare Michal Alberstein and Nadav Davidowitz “Doctrine of Therapeutic Law and Public Health: An Israeli Study” Mehkarei Mishpat (26) 549, 571-578 (2010)). However, the Amendment to the law was enacted after the advocacy approach failed to produce sufficiently effective results according to the Ministry of Health. It may be added that having said that refraining from vaccinating is a seemingly rational act for the promotion of self-benefit in an environment in which most people are vaccinated, the creation of a monetary incentive (if only limited) to be vaccinated is thinking in the right direction because it creates a counterbalance to the benefit entailed in the decision not to vaccinate. (Compare to the discussion in Parkins’ paper above). Perhaps an incentive that is not directly related to child allowances could have been used, and perhaps this type of an incentive should have been preferred. A “vaccination bonus” or a similar benefit could have been established for parents who vaccinate their children. Practically speaking, there is no significant difference between these two methods because in both cases the result is the denial of a benefit from a family because the parents choose not to vaccinate their children. In conclusion, the petitioners failed to indicate a measure of lesser harm that would have achieved the legislative purpose to a similar extent. (See in this context: Aharon Barak, Proportionality in the Law 399 (2010)).
  7. Another consideration in assessing the existence of alternative means pertains to the fact that the basic Vaccination Program to which the Amendment applies includes vaccinations for diseases whose consequences are very severe on one hand, and the contraction of which cannot usually be prevented through other means on the other hand. This consideration is important seeing as part of the vaccination plans enforced in other countries are aimed at diseases, contracted through sexual relations or blood donations that can also be prevented in other ways. (See Note, Toward a Twenty-First Century Jacobson v. Massachusetts, 121 Harv. L. Rev. 1820 (2008); Marry Holland, Compulsory Vaccination, the Constitution, and the Hepatitis B Mandate for Infants and Young Children, 12 Yale J. Health Pol'y L. & Ethics 39 (2012)).
  8. The third sub-test of proportionality, the narrow proportionality test, examines the appropriate relationship between the means chosen and the purpose, as “the end does not justify all means.” I believe that the Amendment to the law before us also passes this final sub-test relatively easily. The purpose which the Amendment to the law seeks to promote is highly important—promoting the health of young children in Israel, as well as promoting the public’s health in the face of serious diseases that break out during times when vaccination enforcement is lax. The means chosen to promote this purpose—a partial reduction of child allowances for a limited period as a means to encourage parents to vaccinate their children—is relatively mild. In addition, it should be kept in mind that currently the Vaccination Program is limited to only four vaccines (given in one concentrated shot), such that the condition to receiving the allowances is essentially limited. It was further determined that the process is reversible in the sense that once the child is vaccinated or the maximum age for vaccination passes the reduction will be cancelled and the allowance recalculated. Furthermore, the reduction of the allowance was capped and proceedings to contest and appeal the institution’s decision to limit the allowances have also been established. The importance of the purpose alongside the relatively minor harm caused by the sanction, speaks for itself. The relatively minor violation of rights in this case constitutes a counterbalance to the recognition that employing a harsher means could have created a tighter link between the means and the purpose within the first sub-test of proportionality as specified above.

Conclusion: About Rights and the State’s Responsibility

  1. An overview of the petition reveals a fundamental tension between the expectations the various individuals have of the State. On the one hand, there is an expectation that the State minimize its intervention in decisions of its citizens. On the other hand, there is an expectation that the State operate in an active manner to promote the citizens’ welfare. (On the discrepancies between the various expectations from the State, compare Barak Erez, Administrative Law, on p. 54-55; Barak Erez, Citizen-Subject-Consumer, on p. 34-35). The tension that exists between these expectations might lead to a conflict, like in the case before us. When the State takes an active stance with respect to child vaccination, it is intervening in personal decisions. Thus, it is ostensibly intervening in the private sphere. However, the means used by the State in this case pertain to the granting of child allowances, the mere granting of which expresses the State’s involvement in the family sphere. Moreover, intervention in the private sphere is not necessarily bad, particularly when it is done to promote the rights of the weak individuals in the family unit, those whose voice is not always heard—in this case the children whose parents did not act to vaccinate them.
  2. There may be a dispute on the scope of the requirement to vaccinate children and perhaps, over the years, changes will even occur in the perceptions that direct the policy in this area. However, on principal, the starting point with regard to the State’s intervention in promoting children’s welfare does not always have to be suspicious. Essentially, taking an active stance on the issue of child vaccination is not the State riding roughshod over rights, but rather evidence of the State’s commitment to the welfare of the children in Israel, a commitment whose importance cannot be exaggerated.
  3.  

Justice E. Hayut:

  1. I agree with the result reached by my colleagues, Justice E. Arbel and Justice D. Barak Erez, that the three petitions should be denied. Like them, I too believe that the petitioners in each of the petitions did not show a violation of the constitutional right to property or to a dignified human existence, and in this context I saw no need to add to the explanations in my colleagues’ opinions. As for the constitutional right to equality, Justices Arbel and Barak Erez determined that Amendment No. 113 to the National Insurance Law ([Consolidated Version], 5755-1995 (hereinafter, the “Amendment to the Law”) violates the right of equality, but further held that despite this violation, the petitions should be denied because the violation satisfies the conditions of the limitation clause. My route to the same result is different. For the reasons I will specify below, I believe that the petitioners in the three petitions failed to show a violation of the right to equality. However, before we examine the question whether the right to equality has been violated, we should inquire what is the group of equals that should be referred to in this context.
  2. One of the arguments raised by the petitioners in HCJ 7245/10 is the argument that the right to child allowances a right conferred upon the child and not his parents. (compare CA 281/78 Sin v. The Competent Authority under Nazi Persecution Disabled Persons Law, 5717-1957 [1978] IsrSC 32(3) 408) and thus the relevant group of equals is the group of children who were given the right to the allowances specified in the National Insurance Law when they came into the world. According to this approach, the essence of the violation of the constitutional right to equality is that, with regard to the child allowances, it is improper to distinguish between children who were vaccinated and those who were not vaccinated. On the contrary, this type of distinction, it is argued, constitutes a double harm to the children: not only did their parents fail to vaccinate them, but the allowance for which they are eligible is reduced because of it. This argument is captivating but it appears to have no real basis in the provisions of the law. Section 66 of the National Insurance Law states that “an insured parent is eligible for a monthly child allowance under this chapter for each child.” This indicates that the right set forth in the law is the parent’s right, provided that the child for whom the allowance is paid is in the custody of that parent. (See Section 69 of the National Insurance Law). Another provision that supports this conclusion that the right to the allowance set in the National Insurance Law is the right of the parent and not the child, is Section 68(b) of the National Insurance Law, which determines a differential payment of the allowance for each of the children in the family according to the birth order. It is obvious that such differential payment is improper if the right to the allowance is the child’s right, since there is no justification to discriminate between the children with regard to the extent of social support they will receive from the State, based only upon the time they were born relative to the other children in the family. In contrast, if the allowance is the parent’s right, it makes sense and is justified to consider, with regard to the social support the cumulative amount available to the family, and therefore setting different allowance amounts for children, based on their birth order does not constitute discrimination. It should further be mentioned that in the past, a tax, in various amounts and under various conditions, was imposed on the child allowances, treating them as parents’ income. (See for example: Taxation of Allowance Points Law (Temporary Provision), 5744-1984; for support of the continuation of child allowances taxation policy see Yoram Margaliot “Child Allowances” Berenson Book Second Volume – Beni Sabra 733 (Editors, Aharon Barak and Haim Berenson, 2000); and for a historical review of child allowance taxation see paragraphs 8-15 of the opinion of Justice D. Barak Erez). The National Labor Court has also adopted the opinion that the person eligible for the child allowance is the parent and not the child. (See NIA 1117/04 Azulai v. The National Insurance Institute (November 2, 2006)). The starting point in examining the question of discrimination raised in the petitions before us is that the right to child allowance is the parents’ right, and that the parents therefore constitute the relevant group of equals.
  3. Does the Amendment to the law, which is the subject matter of the petition, discriminate between the different groups of parents?

“The obligation to act with equality means giving equal treatment to equals and different treatment to those who are different.” (See, for example, HCJ 4124/00 Yekutieli v. The Minister of Religious Affairs, paragraph 35 (June 14, 2010) (hereinafter, “Yekutieli Case”)). Since the enactment of the Basic Law: Human Dignity and Liberty, the right to equality has been recognized as part of the person’s right to dignity in the sense that discrimination, even if it is unaccompanied by humiliation, will be deemed as a violation of the constitutional right to equality which enjoys the constitutional protection conferred under the Basic Law. (HCJ 6427/02 The Movement for Quality Government v. The Knesset [2006] IsrSC 61(1) 619, paragraphs 40-43 of the opinion of President Barak (hereinafter, “re: MQG Case”)). The obligation not to discriminate, which is imposed first and foremost on government authorities, is nothing but a mirror image of the person’s right to equality; therefore, a law that discriminates between equals in the aforementioned aspects may be invalidated as unconstitutional, unless the violation of equality can be justified as a violation that satisfies the conditions of the limitation clause in Section 8 of the Basic Law: Human Dignity and Liberty.

The uniqueness of the petitions before us is in that the petitioners are not arguing that it is unjustified to prefer the group of vaccinating parents over the group of non-vaccinating parents; they focus their arguments instead solely on the manner in which the legislature has chosen to express this preference. For example, the arguments of two out of the three groups of petitioners (in HCJ 7245/10 and HCJ 8357/10) make clear that they consider it very important that the population of children will indeed receive the MMRV vaccine according to the Ministry of Health’s vaccination program (hereinafter, the “Vaccination Program”), and they also deem it justified to set a policy that incentivizes parents to give their children this vaccine, in order to protect the general population from spreading of dangerous epidemics. The petitioners in HCJ 908/11 argue that the effectiveness of the vaccines is uncertain, but they do not argue that simply creating an incentive to vaccinate the children creates an irrelevant and unequal distinction, and focus their arguments on the discrepancy they believe exists between this distinction and the objective of the child allowance. It appears that there is no dispute that the State is entitled, and perhaps even obligated, to use the means available to it to maintain public health, and that according to the medical data in the State’s possession (the accuracy of which the petitioners in HCJ 908/11 dispute), the Vaccination Program is effective and essential in the prevention of dangerous diseases. From this derives the conclusion that the legislature is allowed to treat the group of parents who vaccinate their children differently than the group of parents who do not vaccinate their children, and from the arguments in all three petitions it is clear that had the legislature chosen, for example, to give a monetary bonus to the parents who vaccinate their children rather than reduce the allowance for those who do not vaccinate their children, the petitioners would have had no argument regarding a constitutional violation of the right to equality. In other words, the petitioners do not dispute the fact that the legislator may give different treatment to each of the aforesaid groups, and that it is permitted to do so, inter alia, through an economic incentive.                

  1. Does the fact that the economic incentive enacted by the Knesset was incorporated into the child allowance mechanism by way of reducing the allowance (a negative incentive) cause, in itself, a violation of the constitutional right to equality?

Justice Arbel believes that the purpose of the child allowances is to help fund the families’ expenses in raising children, and thus the denial of a part of the allowance for reasons unrelated to the number of children in the family “would be foreign to the allowance, and therefore violate the right to equality.” (Paragraph 49 of her opinion). Justice Barak Erez believes that the “strongest argument, relatively, of a violation of a constitutional right in this case was the argument on the alleged violation of the right to equality,” and although she doesn’t explicitly determine that such a violation indeed exists and or indicate what makes it strong, she holds that “in any event, even if a violation of the right to equality was found, it would satisfy the tests of the limitation clause.” (Paragraph 61 of her opinion, and see also paragraphs 57-58 of her opinion).

I disagree.

The fact that the legislature amends an existing law, and at the same time creates a new distinction between the groups of those entitled to receive all rights pursuant to the amended law, does not, in itself, constitute a violation to equality, unless we believe that the groups designated as entitled persons in the original law must never be changed. It appears to me that such a rigid approach is uncalled for, and it seems that the question that ought to be examined in this context, like in other cases in which we try to identify wrongful discrimination, is whether the new distinction between the groups of entitled persons created by the law in its amended form treats equals differently. The common method in case law to identify the “group of equals” whose members are entitled to equal treatment is to examine the “objective of the law and essence of the matter, the fundamental values of the legal system, and the special circumstances of the case.” (See for example HCJ 6051/95 Rekant v. The National Labor Court [1997] IsrLC 51(3) 289, 346; HCJ 3792/95 National Youth Theater v. The Minister of Science and Arts [1997] IsrSC 51(4) 259, 281; AA 343/09 Jerusalem Open House for Pride and Tolerance v. The City of Jerusalem, paragraph 41 of the opinion of Justice Amit (September 14, 2010)). In other cases it was stated that the question of whether this is a prohibited discrimination or a permitted distinction will be examined according to the “accepted social perceptions,” (HCJ 721/94 El Al Israel Airlines Ltd. V. Danilowitz [1994] IsrSC 48(5) 749, 779; HCJ 200/83 Watad v. The Minister of Finance [1984] IsrSC 38(3), 113, 118-119; MQG Case, in paragraph 27 of President Barak’s judgment). The fundamental values of our legal system recognize legislative models in which the legislator incorporates into a law intended for a specific main objective, secondary objectives intended to promote important social purposes, even if there is not necessarily a tight link between them and the main objective of the law. For example, the main purpose of the Income Tax Ordinance is “[to] ensur[e] income for the public authority’s treasury,” but the legislature has also used the ordinance and taxation provisions to promote additional social purposes through which “[S]ociety fights phenomena that are perceived as negative. It encourages acts that it wants to encourage and deters acts it wants to prevent.” (Aharon Barak “Interpretation of Tax Law” Mishpatim 28, 425, 434 (1997); For example, see HCJ 2651/09 The Association for Civil Rights in Israel v. The Minister of Interior, paragraph 31 of Justice Danziger’s opinion (June 15, 2011)). The above also applies to customs laws intended mainly, to increase the State’s income, but at the same time serving additional purposes including the “regulation of the demand and the protection of local production and products.” (CA 2102/93 The State of Israel v. Miron Galilee Industrial Plants (MMT) Ltd. [1997] IsrSC 51(5) 160, 167). The objective of the National Insurance Law is to “guarantee proper means of existence for the insured, their dependents and survivors, whenever their income is reduced or disappears for one of the reasons set by the law.” (CA 255/74 The National Insurance Institute v. Almohar [1974] IsrSC 29(1), 11, 14). However, this law, like the other acts of legislation mentioned, promotes additional social purposes as well, such as incentivizing the social and public interest of delivering children in hospitals rather than at home (Section 42 of the National Insurance Law), performing amniocentesis for pregnant women aged thirty-five to thirty-seven (Section 63 of the National Insurance Law), and encouraging the integration of disabled persons into the workforce. (Section 222C of the National Insurance Law; and see in general, Abraham Doron “The Erosion of the Insurance Principle in the Israeli National Insurance: The Effect on the Functioning of the Israeli Social Security Scheme” Social Security 71, 31 (2006)).                   

  1. Does each additional social purpose promoted by a law necessarily violate the constitutional right to equality by discriminating with respect to its general purpose? Of course not. The main question that ought to be examined in this context is not what is the relationship between the general purpose of the existing law and the additional purpose the legislator is seeking to promote, but whether, according to the general tests set in the Rekant Case and other cases which we mentioned above, the legislator has wrongfully discriminated between equals for the promotion of such purpose. For example, it was held in the past that granting tax benefits that are not based on pertinent distinctions or criteria is constitutionally discriminatory and wrongful. (Former) President Beinisch articulated this as follows:

            Granting of tax benefits is tantamount, in economic terms, to granting public funds to selected individuals. Although it is true that the State does not directly transfer funds to taxpayers (and therefore it is commonly deemed as indirect support), essentially, the indirect support is tantamount to charging all taxpayers with tax payment, and in the second stage repaying it to selected individuals only. Such a distribution of public resources, without criteria, constructs a reality in which selected individuals are preferred over others, despite the fact that there is no relevant difference between them. This amounts to a blunt disrespect for a person’s equal status before the law.

            (HCJ 8300/02 Nassar v. The Government of Israel, paragraph 46 (May 22, 2012) (hereinafter, “Nassar Case”) From the positive one can deduce the negative: the tax benefits intended to direct social behavior, although they do not directly derive from the objective of income tax, are not wrongful in themselves, unless they give preference to a group which is not relevantly different from another group.

  1. The petitioners focused on the main purpose of the child allowances, i.e. the provision of social-financial support to those who are parents of children (this purpose also underwent many changes over the years, as arises from the comprehensive review of the legislative history in this regard, specified in the opinion of Justice Barak Erez). Based on this purpose, the petitioners argued that the relevant group of equals is all of the insured, as defined in Section 65(a) of the National Insurance Law, who are parents of children.

Indeed, this probably was the purpose of the child allowances on the eve of the Amendment to the law. However, the legislature has now revealed its view that it wishes to add a secondary purpose, which will affect a certain derivative of the increased allowance set in the Amendment (up to NIS 300 per family)—increasing  the rate of vaccinated children in the population in order to promote the health of children and the public. As far as the normative ranking, this additional purpose does not differ from the objective of the child allowances before the Amendment, and in this sense the former purpose has neither priority nor exclusivity for the purpose of defining the relevant groups of equals. Because the normative ranking is identical, the examination of the argument of discrimination with regard to the Amendment to the law is different from an argument of discrimination in regulations or procedures of the executive authority, in that we are often required to examine the latter in reference to the purpose of laws ranking higher on the normative ladder. (See for example HCJ 9863/06 Organization of Fighter Leg Amputees v. The State of Israel – The Minister of Health, paragraphs 11-14 (July 28, 2008); HCJ 153/87 Shakdiel v. The Minister of Religious Affairs [1988] IsrSC 42(2) 221, 240-242; HCJ 4541/94 Miller v. The Minister of Defense [1995] IsrSC 49(4) 94, 108-110). On the constitutional level, it has been held in the past that legal provisions are discriminatory with respect to the purpose of the same law when a distinction irrelevant to the purpose for which the law was intended was made. (Nassar Case, paragraphs 39-42, 50-52 of the opinion of (former) President Beinisch; Yekutieli Case, paragraph 39 of President Beinisch’s opinion. In these cases, it was a law whose clear purpose pertains to a wide group, but whose clauses were “hiding” conditions that reduce its applicability to a specific group. (On hidden discrimination, see for example HCJ 1113/99 Adala Legal Center for the Rights of the Arab Minority in Israel v. The Minister of Religious Affairs [2000] IsrSC 54(2) 164, 175; HCJ 1/98 Cabel v. The Prime Minister of Israel [1999] IsrSC 53(2) 241, 259-262). This is not the case here. The Amendment to the law which is the subject matter of this petition has altered the purpose of the child allowance in the sense that, similar to the tax legislation which promotes various public purposes, it includes the purpose of incentivizing child vaccination, incidental to promoting its general purpose as articulated above.       

  1. This does not complete the examination of the violation of the constitutional right of equality. As aforesaid, the group of equals is defined not only with respect to the purpose of the law, but also with respect to the essence of the issue, the fundamental values of the legal system, the special circumstances of the case and the prevailing social perceptions. Had the legislature sought to add to the child allowance scheme another purpose that created a distinction between groups that are not relevantly different from one another pursuant to these tests, such an addition would have violated the constitutional right to equality. For example, had the distinction been between groups, the belonging to which does not depend on choice but rather derives from various characteristics of the parents, it would have been justified to wonder whether these characteristics are relevant, according to the fundamental values of the legal system and the prevailing social perceptions. In such a theoretical case, it could not have been argued that the purpose of the Amendment to the law is to promote proper behavior of the parents, and it would have therefore been necessary to deeply examine whether there is indeed a relevant distinction that would justify preferring one group over the other. In addition, regarding the aspect of providing an incentive—positive or negative—for certain behaviors, it should be examined whether the distinction between the various behaviors justifies a distinction between the legal consequences that accompany them in accordance with the tests established in case law. However, in the case before us, not only did the petitioners not support the argument that these are equal groups according to the acceptable tests accepted in case law in this context, but, de facto, they agreed that this is a distinction between groups that may justifiably be treated differently because it is necessary to protect public health, at least according to the studies held by the Ministry of Health. Hence my conclusion that in this case, the distinction set forth by the Amendment to the National Insurance Law between parents who vaccinated their children and parents who refrained from doing so, with regard to the reduction of a set amount of child allowance, does not constitute a violation of the constitutional right of equality of the parents who chose not to vaccinate their children.
  2. In HCJ 7245/10, an argument was raised on the discrimination of the Bedouins in the Negev based on the fact that this sector’s access to Family Health Center services is very limited and this sector consequently finds itself in an impossible situation where it has no access to vaccines and yet is being told to vaccinate. In my opinion, this argument does not establish constitutional grounds for a violation of equality; and insofar as it indeed transpires that pursuant to the Amendment any child allowance belonging to a parent who wished to vaccinate his child but was unable to do so due to lack of suitable access to a Family Health Center was reduced, this would, in my opinion, be a good argument to raise in the contestation and appeal proceedings set forth in Sections 68(i) and 68(j) of the National Insurance Law. Without addressing the argument on the merits, it should be noted that while these petitions were being deliberated, the respondents acted to increase access to Family Health Centers in the Bedouin sector in the Southern District (see details in paragraph 62 of the opinion of Justice Arbel), and the respondents have also presented figures that show that the vaccination rates in this sector are similar to the rates in the other sectors. Therefore, the discrimination argument insofar as it was raised with regard to the Bedouin sector should be rejected in this case.
  3. Before concluding and, I would like to make two notes. One pertains to the nature of the reduction contemplated in the petition. Unlike my colleague, Justice Barak Erez (paragraphs 37-53 of her opinion), I believe that a reduction of child allowances by a set amount as a result of failing to vaccinate according to the Vaccination Program is a sanction and not conditioning. As I understand it, there is an obvious difference between the reduction set by the Amendment to the law and the conditions set forth with regard to eligibility for child allowances, including: the child’s presence in the State of Israel, the child’s age is below eighteen (Section 65(a) of the National Insurance Law [Consolidated Version], 5755-1995), the child is, generally, in the custody of an eligible parent (Section 69 of the National Insurance Law), and the parent is an “Insured” within the definition of Section 65(a) of the National Insurance Law. These and others are conditions to the receipt of child allowances, which guarantee that the allowance will be given to families whose characteristics fulfill the purpose of the child allowance. However, the nature of the reduction set by the Amendment to the law is different from these conditions in several respects. First, the amended law grants an increment to the allowance and alongside such increment also determines that certain amounts of this increment will be deducted from the allowance paid to the parent if the required vaccine is not given by the date set forth in the Vaccination Program. In the words of the provision, if the child is not vaccinated “the monthly child allowance paid for him will be reduced by the sum of NIS 100.” (Section 68(d)(1) of the National Insurance Law; the emphasis has been added). A “reduction” is, as its name suggests, the denial of a right that has been granted, and therefore, it seems that the words of the law and the mechanism chosen support the viewpoint that this is a sanction. Second, this is a reduction that is intended to motivate parents to vaccinate their children using a negative economic incentive that denies part of the allowance amount due to conduct that is inconsistent with the goal the legislature seeks to promote. Such a negative economic incentive bears, by its essence and purpose, the characteristic of a sanction and has a punitive hue that is directed against someone who chooses to jeopardize the health of his children and the health of the general public. In view of my position that we are faced with a sanction and not conditioning, I did not deem it necessary to address the doctrine and the auxiliary tests, which my colleague chose to develop at length in her opinion, with respect to the issue of conditioning. I will further note in this context that the position that we are faced with conditioning was not raised by any of the litigants, and in any event was not discussed and deliberated in the petitions at bar. For these two reasons, I believe this issue may be left for the opportune moment.
  1. Another remark I would like to make as a side note follows. In my opinion, while the reduction at the center of the petitions neither violates the constitutional right to equality nor other constitutional rights and, thus there is no need to grant the remedy sought in the petitions—invalidating the Amendment to the law which sets the reduction—it is difficult to avoid the impression that in the case at bar, the legislature chose a “shortcut” in order to promote the Vaccination Program of the Ministry of Health. The fact that the legislator chose to enforce an administrative Vaccination Program, set by the Director General of the Ministry of Health (Section 68(d)(3) of the National Insurance Law) through a reduction in child allowances derives mainly, it seems, from considerations of efficiency. These considerations were expressed in the Statements of Raviv Sobel, (Former) Deputy Director of Budgets at the Ministry of Finance, in a deliberation held before the Finance Committee of the Knesset:

            The data presented by Dr. Kedman regarding the ineffectiveness of the criminal supervision . . . PM Oron says that we will send an army of policemen, an army of controllers, and they will get the job done, but we see that this is not working . . . there are worse things for which the State of Israel does not indict people; and if someone thinks that the criminal tools are those through which all problems can be solved, just like they discovered around the world that this is not the way, it also became clear in Israel that this is not the way. Criminal tools are not enough. Therefore, certainly, financial incentives are also a tool.

            (Minutes of the Finance Committee’s meeting of June 24, 209, on p. 44; Annex 2 to the preliminary response to the petitions on behalf of the Knesset).  

Indeed, it is difficult to dispute the assumption that the imposition of a sanction based on the data relied upon by the authority, without having to confront the difficulties of its execution, makes the sanction highly efficient. However, without derogating from the importance of considerations of efficiency, it may have been proper to also take additional considerations into account. Perhaps, based on such considerations, it would have been appropriate to first enact a law that creates a vaccination requirement before imposing a sanction on its breach, which would also be set out in the same law. In other words, perhaps it would have been appropriate to take the statutory “highroad” and to regulate the entire issue of vaccination in a single act of legislation. In this context, it is noteworthy that if, for example, a criminal prohibition had been imposed on refraining from vaccinating children it would not have been possible to collect fines imposed on child allowances since national insurance allowances are non-attachable. (Section 303(a) of the National Insurance Law; Section 11 of the Tax Ordinance (Collection); and see also, Pablo Lerner “On the Attachment of Salaries in the Israeli Law”, Hapraklit [48] 30, 46 2005); David Bar Ophir, The Procedure and Case Law of Execution 893-894 (Seventh Edition, 2012)). Furthermore, the right to child allowances is a central and basic social right. This was expressed in both the petitioners’ arguments and in deliberations of the Knesset’s Finance Committee. For these reasons, and for other reasons that can be raised in this context, I believe that it would be appropriate to consider the use of other means to promote the proper purpose of encouraging child vaccination, such as through granting a positive economic incentive to those who vaccinate, or alternatively, through the use of different sanctions. In any event, because I have not found that the manner in which the legislature has acted violates a constitutional right, I concur with the result reached by my colleagues, Justices Arbel and Barak Erez, that the three petitions should be denied.

 

The conclusion of the judgment as per the opinion of Justice E. Arbel.

 

Issued on this date, 26 Sivan 5773 (June 4, 2013).

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Eitanit Construction Products v. State

Case/docket number: 
HCJ 6971/11
Date Decided: 
Tuesday, April 2, 2013
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

 

This is a motion challenging the constitutionality of section 74 of the Prevention of Hazards from Asbestos and Harmful Dust Act, 2011 (“Asbestos Act”). The motion is directed primarily at the obligation of the moving party (“Eitanit”), an asbestos-cement factory in the Nahariya area, to shoulder the cost of half the project’s expenses, up to NIS 150m.

 

The High Court of Justice (written by Justice Hendel, and with Chief Justice Grunis and Justice Zylbertal concurring) dismissed the motion and ruled that section 74 of the Asbestos Act infringes on Eitanit’s right to property but does not discriminate against it. The Court held that section 74 applies only to industrial waste that is a result of Eitanit’s factory work processes. Since Eitanit’s right to property was infringed, the High Court of Justice only addressed the issue of whether the infringement was acceptable under the limitation clause of section 8 of Basic Law: Human Dignity and Liberty. The High Court of Justice relied heavily on comparative law, because, among other considerations, this is a new legal issue with an obviously universal aspect, and because no aspects unique to Israel were demonstrated. Additionally, the High Court of Justice emphasized that this was a matter of judicial review, rather than administrative review, which impacts the extent of permissible discretion by the Knesset.

 

The High Court of Justice clarified that the source of rights infringement is primary legislation, that is, a statute that was enacted by the Knesset in a proper procedure. The Court rejected Eitanit’s claim that this is not a “statute” in terms of the limitation clause because it is a specific, personal statute. It is a formalistic test, which inquires mainly whether the infringement upon basic rights was done in or by authorization of primary legislation. Here, the answer was in the affirmative. The High Court of Justice found that the purpose of section 74 of the Act was to launch a project to remove asbestos waste from the Western Galilee. This is a worthy and important purpose, which fits the values of the State of Israel. The High Court of Justice was prepared to assume that a secondary purpose of the Asbestos Act was realizing the principle of “the polluter should pay” and found this, too, to be a worthy and appropriate purpose.

 

The High Court of Justice addressed whether the means identified in section 74 of the Asbestos Act was proportionate. First, the High Court of Justice examined the rational connection, considering both purposes, and held that for both there is a fit between the means and the purpose. As to whether these were the least restrictive means, the High Court of Justice found that the option of “self implementation” that Eitanit proposed would not realize the purpose of section 74. Additionally, the Court found that the mechanism the legislature chose includes checks and balances that minimize the harm for Eitanit. As for the narrow proportionality test, the Court held that section 74 of the Act does not specifically target Eitanit, but the focus on Eitanit is a result of the reality caused by Eitanit itself.

 

On the issue of strict liability, the Court ruled that although it is a problematic and harsh regime, three considerations reduce its difficulty: considerations of justice and fairness, deterrence and assuming costs, the evidentiary difficulty in fault-based liability systems; support for strict liability in many countries around the world; and a certain dimension of Eitanit’s factual awareness regarding asbestos harms. The High Court of Justice found the Asbestos Act is one of narrow active application. It applies for an existing situation, but this is no ordinary active application: all the factual elements have existed in the past, and section 74 does not apply to the future. It was also found that had the Act been completely applicable retroactively, that would not have been determinative, but rather another factor in the constitutional balance. The Court found three mitigating factors: the element of expectation or knowledge of risk, the scope of the danger, and the rise in many countries’ support for retroactive liability. In summary, the Court ruled that, although the infringement of Eitanit’s rights should not be disregarded and the legislature created a new landscape, the infringement passes constitutional muster under the tests set in the limitations clause. 

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

 

In the Supreme Court as High Court of Justice

 

HCJ 6971/11

 

Before:                                    The Honorable President A. Grunis

                                    His Honor Justice N. Hendel

                                    His Honor Justice Z. Zylbertal

 

The Petitioner

 

                                    1.         Eitanit Construction Products Ltd.

 

                                    v.

 

The Respondents:

 

                                    1.         The State of Israel

                                    2.         The Knesset

                                    3.         Minister of Environmental Protection

                                    4.         Minister of the Treasury

5.         Mate Asher Municipality

                                    6.         Israel Union for Environmental Defense

                                    7.         Association for Quality of Life and the Environment in

Nahariya

 

                                    Petition for Temporary Injunction and Interim Order

 

Date of session:           23th Elul 5772; October 9, 2012

 

                                    Adv. Pinchas Rubin

                                    For the Petitioner

 

                                    Adv. Sharon Rotanshker

                                    For Respondents 1, 3-4

 

                                    Adv. Avital Semplinski

                                    For the Second Respondent

 

                                    Adv. Eitan Maimoni

                                    For the Fifth Respondent

 

                                    Adv. Keren Halperin-Mosseri

                                    For the Sixth Respondent

 

                                    Adv. Moshe Goldblat

                                    For the Seventh Respondent

 

 

 

 

Judgment

 

Justice N. Hendel

1.A petition against the constitutionality of section 74 of the Prevention of Hazards from Asbestos and Harmful Dust Act, 2011 (“Asbestos Act”) is before us. This section declares the launch of a project to remove asbestos waste from the Western Galilee (“The Project”). The petition objects primarily to the requirement that the Petitioner, Eitanit Construction Products Ltd. (“Eitanit”), to shoulder half of the expenses of the project, up to NIS 150m.

General Background – Asbestos:

2.Asbestos is an umbrella term for a group of fiber minerals, with high insulation and resilience properties. Because of these qualities, for hundreds of years asbestos has been widely used for industrial purposes, such as producing protective gloves and other gear, acoustic insulation boards and more.

Currently, it is known that crisp asbestos, that is: asbestos in ground or powder state, is a dangerous substance that may cause cancer. Crisp asbestos releases tiny fibers into the air, which enter the respiratory system and harm lung tissue. Among the first diseases recognized as linked to asbestos was asbestositis: the shrinking and scarring of lung tissue, which causes shortage of breath and a decline in lung functions. Another disease is mesothelioma: a cancerous tumor that harms the lungs, heart and abdomen.

The petition before us, as will be explained below, deals with a material called asbestos-cement. It is a compound made of approximately 10% asbestos and 90% cement, in hard from. Out of this asbestos-cement mixture products such as pipes and boards may be manufactured. As long as the asbestos-cement remains in hard from, the asbestos fibers are contained in the cement. This may change when the asbestos cement – or the product manufactured from asbestos-cement – is eroded, cracked or broken, then the dangerous asbestos fibers are released into the air.

Awareness of the dangers of asbestos has grown over time. As early as the beginning of the 20th century, information about the prevalence of asbstositis among workers exposed to asbestos has accumulated. Later reports proliferated about different cancers among asbestos workers. In 1976, after a comprehensive examination of the scientific material, the International Agency for Research of Cancer (IARC) recognized asbestos as a substance certain to cause cancer in humans (Class I). Additional research indicated that health risks were caused not only to asbestos workers but to those who live in close proximity to asbestos mines, as well as family members of asbestos workers (generally, for an updated review of asbestos risks by IRAC, see Monographs.iarc.fr/ENG/Monographs/vol100C/mono100C-11.pdf)

The Petitioners and the Asbestos Industry

3.In 1952 Eitanit set up an asbestos-cement factory in the Nahariya area (“the factory”). Work in the factory included two stages: in the first stage, the factory imported raw asbestos to Israel and made asbestos-cement out of it. In the second stage, final asbestos-cement products, such as pipes and boards, were manufactured. The factory was closed in 1997.

Over the years, and during production processes, a significant amount of industrial asbestos waste was amassed in the factory (“the waste”). Eitanit disposed of the waste in two ways: one, it sold or gave away the waste to third parties, which I will refer to as end users, that used the waste primarily for surfacing, for instance to pave roads or parking lots. Second, Eitanit buried the waste in the ground. The first method of removing the waste – that is, selling or giving it away, probably stopped around the late 70’s.

In any event, the waste was distributed in dozens of locations around the Western Galilee. Both the waste that was buried and the waste that was used for surfacing risks area residents’ health to this day. The waste is partly crumbled, causing asbestos fibers to be released into the air. Additionally, the daily use of the surfaces which were covered with asbestos uncovers masses of crisp asbestos and create a health hazard. Surveys commissioned by the State revealed that the asbestos waste distributed in the Western Galilee amounts to about 30,000 cubed meters and the State evaluates that the clean soil that was polluted by this waste amounts to about 150,000 cubed meters The Petitioner, however, believes that the ratio between the waste and the polluted soil is 1:3, not 1:5.

The Previous Proceedings Regarding the Petitioner:

4.The petition before us deals, as mentioned, with a project to remove asbestos waste that arguably came from Eitanit’s factory. But this is not the first round of proceedings on this matter between Eitanit and State authorities.

As some point, Eitanit began to remove some of the asbestos waste to a site within Shlomi municipality (Hanita mine), without permit or license to do so. In 1981 the Ministry of Health demanded Eitanit cease from this practice and the site was closed. Consequently, Eitanit buried waste at the Sheikh Danon site, also without permit or license. In March 2002 the Ministry of Environmental Protection (“the Ministry”) issued conditions for temporary permits that would allow restoring the site at Sheikh Danon. In a petition by Eitanit against the Ministry, which was dismissed, the court pointed out that the demand to require Eitanit shoulder the cost of the site’s restoration is “natural and obvious” (AP 589/02). Ultimately, in 2003, after additional legal proceedings, the Sheikh Danon site also closed.

In 1998, after the factory was shut down, the City of Nahariya initiated a project to build an amusement park called “The Children’s Land.” The park was meant to be located on the beach, adjacent to the closed factory. When it was revealed that the area was polluted with asbestos, the Ministry issued a decree to preserve cleanliness, according to section 13b of the Maintenance of Cleanliness Act 1984. The City of Nahariya announced it would clean the area from asbestos, and consequently sued Eitanit for reimbursement of costs. In 2007 the dispute between the City and Eitanit regarding that area was settled.

In 2005 the Minister of Environmental Protection (the Minister) met with representatives of Eitanit and of the City, in an attempt to reach an agreement for co-funding asbestos waste removal from the Western Galilee. The attempt failed. In May 2007 negotiations between the parties resumed. Eitanit proposed, among others, that it remove the waste on its own. In November 2008, the Ministry notified Eitanit of a decision that the State would no longer facilitate a mutual agreement.

In December 2008 the Asbestos Act memorandum was distributed. The Act aimed to resolve a whole host of environmental issues around asbestos hazards in Israel. Among others, the Act included a specific section that addressed the project of removing asbestos waste from the Western Galilee. This is section 59 of the bill, which eventually became section 74 of the final Act and is the section at the center of this petition. We will address the Act and the section in further depth. Briefly, the section required Eitanit to fund half the project to remove asbestos waste from the Western Galilee. In 2009 the bill passed its first reading, and was referred to the Interior Committee and the Environmental Protection Committee. Eitanit’s representatives attended the committee’s meetings, and presented their arguments against the proposed arrangement. In March 2011, the bill passed its second and third readings.

Simultaneously, the Ministry published a tender to select a corporation that would manage the removal project. Negotiations were conducted with Eitanit, along with others, and in December 2009, it proposed participating in the project at the cost of NIS 10m, a sum that was later updated to NIS 15m. There were big gaps between parties regarding calculating costs, including due to different estimations of the amount of soil polluted and of the cost of removal. In November 2010, when the negotiation was complete, the Ministry of the Treasury notified Eitanit that its financial proposal for the project was rejected and Eitanit responded by withdrawing the proposal altogether.

In June 2011, after the Act’s publication, Eitanit complained to the Minister of Environmental Protection that section 74 creates extraordinarily important constitutional problems. It suggested the Minister institute regulations that would prevent, or at least reduce, the infringement of Eitanit’s rights. In response, the Minister emphasized that the constitutional issues were already discussed comprehensively and thoroughly before the bill passed. Later, in August 2011, the Minister provided Eitanit with a draft of instructions for implementing section 74 for its review. The draft did not satisfy Eitanit, and correspondence between the parties continued. Eventually, in September 2011, the Minister signed the final version of the instructions. Once Eitanit concluded it had exhausted the proceedings to temper section 74, without a satisfactory minimization of its harm, it filed the petition before us.

On the Prevention of Hazards from Asbestos and Harmful Dust Act (Asbestos Act)

5.The Asbestos Act was designed to reduce the environmental and health hazards caused by asbestos or by other harmful dusts. The purpose is ensuring an adequate environment under the principle of preventative care and the improvement of quality of life and the environment (section 1).

The Act expressly prohibits manufacture, import, possession and use of asbestos in any way and for any purpose, unless permitted by the Act (section 3). The Act regulates the continual use of existing asbestos in public places and factories (sections 4-8). The Act prohibits anyone from creating an asbestos hazard, that is: causing the existence of asbestos fibers in the air, and requires the creator of the hazard to remove it at their own expense (sections 10-11). The Act also regulates methods for handling asbestos, including the granting of licenses and working with asbestos (chapters E-F). There is also an option to apply several of the Act’s provisions to other materials that may be defined as harmful dust (section 71).

Section 74 was designated to address the asbestos hazards in the Western Galilee. This is the section the petition before us focuses on. The language of the section is as follows:

“(a)            In this section –

“the project to remove asbestos from the Western Galilee” – a project to locate, remove, and bury asbestos waste which originated from a factory for asbestos manufacture in the Western Galilee, which was buried or distributed in a radius of up to 15 KM from the factory, except for land owned by asbestos companies, at an extent and measures instructed by the Minister in consultation with the Minister of the Treasury, and as it pertains to the funding aspects of the project, with the consent of the Minister of the Treasury;

“Asbestos Companies” – companies that manufactured asbestos in the Western Galilee prior to the day this Act came into effect.

(b)              The project of asbestos removal from the Western Galilee will be funded through the State budget, payments from asbestos companies, and payments from local authorities within whose jurisdiction the project will take place (“local authorities”).

(c)              A separate account will be managed in a trust to preserve cleanliness and will be used to fund costs, direct or indirect, of the project for asbestos removal from the Western Galilee (in this section – “the separate account”).

(d)             The Minister, with the Minister of the Treasury’s consent, after providing the local authorities and the asbestos companies the opportunity to present their arguments, will order the sums that the local authorities and the asbestos companies will transfer into the separate account and the schedule for payments, as long as the entire sum from asbestos companies will be equal to the entire sum from the state budget and the local authorities combined. However, the entire sum from the asbestos companies may not exceed NIS 150m.

(e)              While setting payment sums and schedules according to section (d), the Minister will consider, among others, the scope of the state budget dedicated to funding the project generally, the sums already actually expended, and regarding local authorities – the identity of property rights holders in the land where asbestos is found, the use of these lands and the extent of the authorities’ responsibility over them, as well as the local authorities financial state.

In other words, a project for the removal of asbestos waste from Eitanit’s factory that was buried or distributed in a radius of up to 15 KM from the factory would be launched. In this regard “asbestos waste” includes asbestos that was broken, cracked or fractured, or broken as well as asbestos that is unused (as defined in section 2). It should be noted that the statute does not explicitly mention Eitanit’s name, but instead uses general language – “asbestos companies” and “a factory for asbestos manufacture”. Still, as will be clarified below, there is no dispute that the statute in effect targets only Eitanit and its factory; it is the only company in the Western Galilee area that manufactured asbestos.

The project would be funded from three budgetary sources: the State, the local authorities in whose jurisdiction the project will take place, and Eitanit (who, as mentioned, is not explicitly mentioned by name in the section.) The Minister will establish the extent and process of the project. Additionally, the Minister will set the sums that the local authorities and that Eitanit will transfer, once their arguments are heard. Setting the amounts of participation is subject to two restrictions. First, the sum that Eitanit transfers will be equal to the total sum the State and the local authorities transfer, combined. Second, the sum Eitanit transfers must not exceed NIS 150m.

In September 2011 the Minister signed the implementation instructions. They stipulate that the project will take five years, and will be executed by a managing company chosen by tender. A local authority’s participation will be calculated as 10% of the removal cost, through equally valuable operations, including restoration. To set the sums required from Eitanit, the company will receive itemized reports of expenses every three months, along with a detailed report of the sites where the removal was done and the amount of waste removed. Eitanit will have 30 days to respond to each bill (annexure 20 to the State’s responding papers.)

The Parties’ Arguments

6.Eitanit claims, in essence, that section 74 infringes its right to property and rights to equality, without passing the conditions of the limitations clause.

The infringement on property rights manifests in the very imposition of financial burdens, exacerbated by the severe and retroactive responsibility without demonstrating fault or liability. The infringement of equality was caused by discriminating against Eitanit compared to others – asbestos importers, end users and future polluters – who have been partially or fully absolved from any liability regarding asbestos waste.

The infringement of property and equality does not pass, as the argument goes, the tests set by the limitations clause. It is not an infringement or restriction by statute, as this is personal legislation. It is not for a worthy purpose that befits the values of the State of Israel, as Eitanit was retroactively tainted as a lawbreaker without evidence it actually did pollute the land. And finally, the infringement is not proportional: the statute does not advance the end of channeling the conduct of offenders or to deter them, so that there is no rational connection between the ends and the selected means. Other less restrictive means were available, for instance: allowing Eitanit to execute the project on its own or valuing its participation in funding the project according to the extent of its liability. In any case, the benefits of this section are minimized compared to the harms caused to Eitanit.

Ultimately, Eitanit asks we void section 74. Alternatively, it suggests other remedies, in the following order of preference: directing the Minister to set regulations that would de facto release Eitanit from the mandates of section 74, allowing more proportional means (such as paving paths or performing other aspects of the project by Eitanit), directing the Minister to hold a proceeding where Eitanit could be heard and the Minister would be able to consider the extent of its liability regarding the entire area effected by the project.

7.The State emphasizes that section 74 is designed to apply only to industrial waste that resulted from Eitanit’s factory’s operations. It does not apply to complete asbestos-cement products that were purchased by end users and then disassembled and discarded, but only to the waste that Eitanit produced.

The State is willing to assume that the statute infringes upon Eitanit’s property rights. However it disputes the infringement to the right to property: it raises misgivings as to whether the right to equality should apply to corporations, and argues that in any case Eitanit’s right to equality was not infringed here as there is a relevant difference between Eitanit and the other entities it had identified.

The State continued its constitutional analysis on this foundation. The infringement is by statute, albeit personal legislation. The infringement is for a worthy purpose – the removal of serious environmental hazard in the Western Galilee. The statute relies on the principle of “the polluter must pay” that derives from rationales as efficiency, deterrence, and justice. As for the issue of proportionality, there is an obvious connection between the ends – cleaning the Galilee from asbestos waste, and the means – launching the project. The mean selected is mild, as Eitanit shoulders only about half of the project’s cost, and in any case no more than NIS 150m. The proposal that Eitanit itself will clear the land was discussed between the parties for a long period of time, but turned out to be impractical and ineffective. Finally, the benefit derived from the statute (eliminating proven health risks) far outweighs the harm caused to Eitanit, if any.

8.Many of the sites intended for waste removal are located within the territory of the local authority of Mate Asher, the Fifth Respondent. In its response to the petition, the local authority emphasized that Eitanit turned a substantial profit from selling asbestos-cement waste, though it knew in real time, or at the very least should have known – about the dangerous outcomes of asbestos exposure. The local authority additionally notes that the basic rights on which Eitanit hangs its hat, if any, should yield to the rights to life and to bodily integrity of those actually and potentially harmed by asbestos.

The Sixth and Seventh Respondents are public non-governmental organizations active in environmental preservation and protection. They reiterate that the statute was born out of all the failed attempts to consensually address Eitanit’s financial liability. In this regard, the Respondents refer to the principle of extended producer responsibility (EPR), which would have manufacturers responsible for their products’ environmental impact during the entire life cycle of the product. This principle is applied in different contexts in many of the OECD states, an organization of which Israel is now a member.

9.To paint a complete picture, we should note that on October 9, 2012 a hearing was held for this petition. At the end of the hearing we ordered the parties to notify the Court, within 60 days, whether a settlement was possible. On November 16, 2012, the Respondents notified the Court that they believe any arrangement different to that which the legislature mandated in section 74 would be inappropriate. We must therefore rule on this petition.

It should also be noted that Ms. Ayelet Bruner has moved to join as respondent. As the motion explains, her husband – a resident of Kibbutz Kabri, which is adjacent to the factory – died of mesothelioma due to asbestos dust exposure, and Ms. Bruner has therefore filed a tort suit against Eitanit and the State. Ms. Bruner argues that she holds additional evidence that Eitanit and the State notified here at the relevant times about the risks of asbestos. Under the circumstances her arguments were included, explicitly or implicitly, in the other parties’ arguments, and thus we do not believe it appropriate to formally join her to the petition.

Discussion and Ruling

I. Comparative Law

10.The issue before us is universal. It stems from the connection between humanity and the land. In more detail, it is a result of the conflict between humanity’s desire to control the environment and the cost of this progress.

The dialectics that arise because of humanity’s ambition to develop and evolve is addressed in Jewish law, and is timeless. Its roots can be found in the first human himself. In the Book of Genesis, man is commanded: “be fruitful and multiply and inherit the earth” (Genesis 1, 28). In his monumental manifest, “The Lonely Man of Faith,” written almost 50 years ago, Rabbi Yosef Dov Halevi Soloveitchik mentions that in the beginning of the Book of Genesis there are two descriptions of the creation of man to emphasize his two facets. The first man, described in chapter 1 of Genesis, about whom it was said that he was “created in God’s image” (Genesis, 1, 27), is creative. “He engages in creative work, trying to imitate his Maker … In doing all this, Adam the first is trying to carry out the mandate … "to fill the earth and subdue it." … man’s dignity, manifested in man’s awareness of his responsibility and ability to fulfill his duty, cannot be realized as long as he does not control his surroundings… there is no dignity without responsibility, and one cannot shoulder responsibility as long as one cannot fulfill the commitments involved… we have obtained the following triple equation: human dignity-responsibility-majesty.” (The Lonely Man of Faith, J.B. Soloveitchik, Tradition Magazine (summer 1965), Rabbinical Council of America. Hebrew translation by Mossad HaRav Kook Publishing, 8th edition, 2002, pp. 13-18.) Control over the environment – a mixed blessing. In conquering nature, humanity is impressive in its creativity and progression from one generation to the next. However, its comprehension is limited. Humanity cannot know, at the same time it controls the environment, what toll this “progress” may take.

Jewish law was even sensitive to this aspect. The rule is – do not destroy (Talmudic Encyclopedia, volume 3, under “do not destroy”, in Hebrew – “Bal Tashchit”.) Originally, the prohibition is on destroying fruit-bearing trees during a wartime siege: “should you siege a city many days in order to fight and conquer, you shall not destroy its trees.” (Leviticus 20, 19-20). However, Jewish law’s sages interpreted the prohibition broadly. The Book of Education (=Sefer ha-Chinnuch), that summarizes all 613 commandments (authored in the 13th century, likely by Rav Aharon Levi of Barcelona), explains the reasons and application of this commandment:

“The root of the commandment is known to be teaching us to love good and utility and stick to it, and in turn good will stick to us and we will distance from all evil and destruction. It is a way of the pious and men of action, peace lovers, those who rejoice in the good of people and bring them closer to the Torah, who will lose not even a mustard seed, and will grieve any loss or destruction that they come across, and if they could they would rescue anything from ruin with all their might.” (Torah portion of “Judges” [=Shoftim].)

Rav Shneor Zalman of Lyadi, (founder of Chabad Russia in the 18th century) believes the “do not destroy” prohibition applies even to the abandoned:

“Just as one must be careful of loss, damage or harm to one’s body, so must he be careful of loss, damage or harm to his funds. And anyone who breaks tools or clothes or demolishes a building or clogs a pool or discards food or spoils anything else that should be enjoyed by people is violating the commandment ‘do not destroy’… even if abandoned.” (Shulchan Aruch Harav, Choshen Mishpat…)

Therefore the matter is not preserving the property rights of others in the private sense, but of the environment as a right to property.

The above functions as normative background to the issue at hand. In recent years, all around the world, countries have been required to face different dilemmas regarding the environment. A significant portion of these dilemmas incorporates legal, economical and moral aspects, among others. Among these, the removal of polluting waste – the issue at the core of this petition – is a matter that carries real weight. Asbestos, specifically, has proven to be a strong, efficient material, with many uses. Over time, its harm was discovered to tremendously outweigh its utility.

Since the 20th century, different countries have faced the problem of cleaning the environment from asbestos, determining who must shoulder the burden of implementing and funding the task. Therefore, I found it fit to turn to the relevant legal framework in several key countries overseas. Of course, we should not automatically apply those here. But because of the universal character of the issue before us, I believe there are benefits to paying attention to legal trends in the world. It should be noted, before presenting the legal situation in other countries, that the legislation I mention applies to asbestos as part of a broader group of polluting or dangerous materials.

11.In 1980 the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was passed in order to address environmental hazards. CERCLA was designed to regulate the removal of polluting materials from dangerous waste sites that were abandoned or stopped operating. It places the obligation to fund the cleaning process on the creator of the hazard (see Karen S. Danahy, CERCLA Retroactive Liability in the Aftermath of Eastern Enterprises v. Apfel, 48 B 509, 530 (2000)). Below we focus on two elements of CERCLA that are particularly pertinent to the case at hand: strict liability and retroactivity.

The case law has found CERCLA to establish strict liability. There is no question whether, and to what extent the hazard creator violated its duty of reasonable care or is in any way blameworthy for the risk it created. Therefore the creator of the hazard will be liable even without proof that a duty of care was not fulfilled (Alexandra Klass, From Reservoirs to Remediation: The Impact of CERCLA on Common Law Strict Liability Environmental Claims, 39 Wake Forrest L. Rev. 903 (2004) and see Israel Gilad, Tort Law – Liability’s Limits, 1190 B.H.S. 167 (2012), which addresses the distinction between strict liability and absolute liability, where the latter “is not subject to any defenses.”) Although the principle of strict liability was not written explicitly into CERCLA, the case law found that the legislative history – including minutes from committees and general discussions in the House of Representative and Congress – reveal this was the legislature’s intent (see New York v. Shore Reality Corp., 759 F.2d 1032, 1042 (2nd Cir. 1985); General Elec. Co. v. Litton Indus. Automation Sys. Inc., 920 F.2d 1415, 1418 (8th Cir. 1990); Burlington N. Santa Fe Ry. V. United States, 556 U.S. 599, 608 (2009)).

The strict liability standard did not appear out of nowhere. At common law, strict liability is a prevalent standard for particularly dangerous tortuous activity. A British judgment from the 19th century, Rylands v. Fletcher, considered a water reservoir that exploded and flooded a neighboring coalmine (Rylands v. Fletcher, L. R. 3 H.L. 330 (1868)). The House of Lords held the defendant liable, though no negligence by him was proven, because the reservoir was found to be “likely to do mischief if it escapes.” Nowadays, the second and third Restatement of Torts notes that whoever conducts abnormally dangerous activity will be liable for damages resulting from that activity, even if maximal precautions were taken (Restatement (Second) of Torts § 519(1) (1977); Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 20 (2010)). This is the historical-legal foundation from which CRECLA’s strict liability standard stems.

Based on the legislative history, the case law and the scholarship presented about CERCLA, another reason for strict liability arises: conventional legal methods have failed to combat the occurrence of polluting waste. This reason, which is rooted in the legal realism school of thought, has helped to shape legal policy. Among other considerations in favor of placing strict liability are reasons of justice: in the absence of blameworthiness, it is justified to place a risk on the party who created that risk and has financially benefited from it (Lynda J. Oswald, Strict Liability of Individuals Under CERCLA: A Normative Analysis, 20 B.C. Enntl. Aff. L. Rev. 579 (1993)). While the legislation has been opposed for placing liability without fault, the position that allocating costs to the polluter was found to outweigh placing those costs on all of society. This was also due to the link between the polluter and harm, both in terms of creating that harm and in terms of profiting from it.

From another perspective, one might ask what is the economic benefit in placing liability without fault? Where is the deterrence in this? The answer is in the distinction between cost internalization and cost externalization. Under this theory, whoever handles material that pollutes or is likely to pollute should consider the possibility of strict liability. To reduce potential future costs, such party would initiate from the get-go research and experimental activity the produce a more cost-effective and environmentally friendly product, or at least one that has less potential for harm. The polluting party, who has expertise and capabilities, is in a better position to take such preventive measures. Under this approach, it is strict liability that creates deterrence (for more, see Mark Wilde, Civil Liability for Environmental Damage: A Comparative Analysis of Law and Policy in Europe and the United States (2002); Lucas Bergkamp, Liability and Environment: Private and Public Law Aspects of Civil Liability for Environmental Harm in an International Context (2001)).

As mentioned, CERCLA imposes liability even on whoever produced and distributed dangerous materials before the legislation’s enactment, though this activity was permissible at the time. CERCLA had to face facts already on the ground. In this context, too, the American statute did not explicitly create retroactive liability. American law, it should be reiterated, includes a rebuttable presumption that legislation does not apply retroactively, unless the legislative intent was clearly different (Landsgraf v. Usi Film Prods., 511 U.S. 244 (1994); Eastern Enterprises v. Apfel, 524 U.S. 498 (1998). However, the case law recognized CERCLA’s retroactive application, realizing this was clearly the legislative intent. It was understood from the statute’s language, its history and the payment mechanisms it established (U.S. v. Hooker Chem. & Plastics Corp., 680 F. Supp. 546 (W.D.N.Y. 1988); U.S. v. Olin Corp., 107 F.3d 1506 (11th Cir. 1997)).

CERCLA’s retroactive application survived judicial review. The case law held that this aspect of the statute did not violate due process, because of its rational and legitimate purpose to clear sites that are no longer in operation of their dangerous waste. Additionally, the legislation was not arbitrary or irrational because it burdened the entity that polluted and profited from that pollution (U.S. v. Ne. Pharm. & Chem. Co., 810 F.2d 726, 732-34 (8th Cir. 1986)). The case law found that without retroactive application achieving the legislation’s purpose – cleaning existing waste – is impossible. We should note the similarities between these tests to those in Israeli law’s limitation clause.

12.In 2004, a directive was passed by the European Union (“EU”) regarding the liability for environmental harms: Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage (ELD). The core principle of the directive is “the polluter must pay” – whoever caused environmental harm through their actions must shoulder the financial consequences.

The ELD’s instructions do not require EU member states to set retroactive application. Put differently: liability applies to environmental damage even if it occurred before the statutory prohibition came into effect. As to the scope of liability, the ELD directive distinguishes between categories. The first is that of strict liability and it applies to harm caused by dangerous activities listed in the directive’s third appendix. The second category is of fault-based liability, and it applies to all other activity that may have caused harm to nature reserves or protected animal species. Notably, earlier versions of the directive expressed support for broader application of strict liability. In 1993 the Commission issued a “green document”, a non-binding working paper of sorts, that detailed the justifications for a strict liability standard for environmental damage (Commission Green Paper on Remedying Environmental Damage (COM 1993) 47 final (May 14, 1993)). Consequently a semi-binding principles document, a “White Paper” was issued in 2000 (Commission White Paper on Environmental Liability (COM 2000) 66 final (Feb. 9, 2000)). This document discussed at length the evidentiary challenges of a fault-based standard, which may be resolved by a strict liability standard, and argued that there is greater level of justice in imposing strict liability on polluters. Additionally, the doctrine of cost internalization was emphasized as a measure of deterrence.

In reality, European countries adopted various approaches (on the legal state in Europe, see: Chris Clarke, Update Comparative Legal Study (2001); Robert v. Percival, Katherine H. Copper & Matthew M. Gravens, CERCLA in a Global Context, 41 SW. L. Rev. 727 (2012); N.S.J. Koeman, Environmental Law in Europe (1999). Sweden imposes strict liability for any pollution that harms or may harm people and the environment (Sweden Environmental Code, 1998). Such is the law in Switzerland, which is not a member of the EU (Environmental Protection Act of 1983, §4), and in France (Percival, Cooper & Gravens, 740). Holland distinguishes between two pieces of legislations: the statute from 1982 (Soil Clean-up (Interim) Act of 1982) applies retroactively from 1975 onward, because a polluter from that date forward ought to know it may be liable for its actions. This means that should the state remove pollution created after 1975, it may demand the polluter to shoulder costs, as held by the Holland Supreme Court (State v. Van Wijngaarden and State v. Akzo Resins (24.4.1992)). The legislation from 1994 focuses on administrative orders for removal of hazards. The agency employs this legislation, with a degree of success, to order a polluter or landowner to remove pollutions created before 1975. There is also a mechanism of environmental insurance shared by Dutch insurance companies (Nederlandse Milieupool), which aims to provide coverage, including for costs incurred by removing pollution, through direct payments to end users (Percival, Cooper & Gravens, 744; Wilde 203). In Spain, the relevant statute (Wastes Law tit. V (B.O.E. 96, 1998)) places responsibility for cleaning the polluted site on the polluter. This is retroactive and strict liability. In 1998 Germany adopted the federal statute that regulates protection of land from pollution (The Federal Soil Protection Act). The Act establishes strict liability, but the scope of actual compensation may be reduced according to the extent of the polluters’ liability. In Finland, new legislation from 2000 (Environmental Protection Act) applies strict liability on any kind of pollution, but not retroactively. The situation in Britain is highly similar to the legal situation in the United States under CERCLA. The British Environmental Protection Act of 1995 imposes retroactive strict liability for removal of hazards, regardless of the time the pollution was created and without an exhaustive list of polluting materials.

In Canada, relevant environmental legislation is not federal. Generally, legislation in most of Canada’s provinces is based on the principle of “the polluter must pay” while adopting strict liability standards. In Saskatchewan, legislation imposes strict liability to remove hazards on their creator (Environmental Management and Protection Act). In Nova Scotia, anyone who releases polluting material into the environment is obligated to reverse the pollution and remove the polluting material (Nova Scotia Environment Act, 1994-1995 S.N.S., ss. 67(2), 68(2)). The most restrictive standard of liability is that of British Columbia (Environmental Management Act, S.B.C.). This statute requires the manufacturer of a dangerous material, or anyone interested in that dangerous material’s removal, to remove it, as well as places retroactive strict liability upon them for the removal and rehabilitation of the polluted area. The statute clarifies that this obligation applies even when no legislation prohibited pollution at the time the pollution was created.

The Constitution of South Africa guarantees the right of each person to an environment that is not harmful to health or welfare (S. Afr. Const. §24(a), 1996). Following this right, South Africa’s National Environmental Management Act of 1999 (NEMA) requires anyone who has polluted or harmed the environment to remove that hazard and rehabilitate the damaged area. The statue does not explicitly establish strict liability, but the South African High Court (Transvaal Provincial Division) ruled that strict liability applies to owners of polluted land. However, the court ruled that the legislation is not retroactive as the legislature did not intend as such (Chief Pule Shardrack VII Bareki and Others v. Gencor Limited and Others (2005)). 

13.To end this part, let us recall that the environmental policy termed “Extended Producer Responsibility” (ERP) is widespread in Europe. This policy aims to extend the manufacturer’s liability to a product’s entire life cycle, even after the product is out of the manufacturer’s possession, or is no longer in use. It is rooted in the expectation that a more suitable policy would incentivize manufacturers to factor in, as early as when a product is being designed, environmental concerns such as improving the prospects for recycling the product, reducing the use of materials, etc. (see an overview by the OECD: www.oecd.org/env/tools-evaluation/eprpoliciesanIsrSCroductsdesigneconomictheoryandselectedcasestudies.htm).

In practice, the EPR doctrine brings different policy tools together: burial tolls, deposits, subsidies, and other taxes. Therefore, for example, in 1994 the EU issued a directive regarding packaging waste. The directive regulates manufacturing packages, as well as sets quantity goals for collecting and recycling packaging waste (for more on implementing the EPR policy in European Union countries see: Aaron Ezroj, Extended Producer Responsibility Programs in the European Union, 20 Colo. J. Int’l Envtl. L. & Pol’y 199 (2009)).

14.In summary, the overview above reveals different and similar components. As far as imposing strict liability on the polluter, a consensus emerges, certainly regarding inherently dangerous materials such as asbestos. Of course there are countries that have tied the extent of that strict liability to the level of fault. As for retroactive application, it appears there are different approaches: those who support retroactive application and those who oppose it. The implication of this review on our case will be clarified below.

II. Constitutional Analysis

15.We now turn to examining the constitutionality of section 74 in Israeli law. First we must consider the rights Eitanit argues were violated. Then we may discuss whether that violation, if any and to what extent, passes the tests established in the limitation clause of section 8 of Basic Law: Human Dignity and Liberty.

A. The Violated Rights

(1). The Right to Property

16.The right to property is enshrined in our law in section 3 of Basic Law: Human Dignity and Liberty. This right is accorded to corporations as well (see HCJ 4885/03 Israel Poultry Farmers Organization, Cooperative Agricultural Union Ltd. v. the Government of Israel, IsrSC 59(2) 14, (2004) at para 41 of Justice Beinisch’s opinion and citations there.)

The State agrees that section 74 infringes Eitanit’s right to property. In any event, this point needs no elaboration. I will only remark that according to Eitanit its property rights are violated not only by imposing financial obligations, but also by imposing a seemingly retroactive obligation without examining whether Eitanit is at fault. I will address these to aspects of section 74 in depth below.

(2) The Right to Equality

17.Eitanit’s argument is twofold. First, it should enjoy constitutional protection of its right to equality. Second, this right has been violated.

Still, the first prong is not at all simple. In Israel, constitutional protection of equality rights flows from the constitutional protection of human dignity. This is because the right to equality is not explicit in the Basic Laws. It is a hybrid model of sorts, in the sense that violations of equality rights are recognized only in the – rather broad – context of harms to human dignity. In regards to the latter the case law has adopted the approach that the constitutional protection covers not only humiliation or indignities, but also other aspects closely related to human dignity. For our purposes, this means that the constitutional protection of equality applies only to discrimination that humiliates and disgraces, or discrimination that is closely linked to human dignity (HCJ 5427/02, Movement for Quality of Government v. the Knesset, IsrSC 61(1) 619, at para 38 of President Barak’s opinion (2006); HCJ 6304/09 L.H.B v. the Attorney General, at para 76 of Justice Procaccia’s opinion (Sep. 2, 2010)). In this view, it is doubtful whether the constitutional right to equality should extend to a legal entity that is not flesh and blood (compare: HCJ 4593/05 United Mizrahi Bank Ltd. v. the Prime Minister, at para 10 of President Barak’s opinion (Sep. 9, 2006); HCJ 956/06 Israel Bank Union v. Minister of Communication, at p. 12 of Justice Hayut’s opinion (March 25, 2007); Ofer Sitbon, On People, Corporations, and everything in between, Kiryat HaMishpat 8, 107 (2009)).

In the case before there is no need to decide the general issue of the scope of constitutional protection for corporations’ equality rights. The reason for it is that I believe, as detailed next, Eitanit was not discriminated against at all. Incidentally, there may be instances where discrimination or lack of equality in the corporation context would require consideration. Two examples suffice: first, a statute that taxes a company owned by Arabs differently than a company owned by Jews. Even if the State would argue that the taxation applies to the corporation and not the individual, this is a matter that must be adjudicated. This example is easier because although there is discrimination between corporations – it is based on grounds involving people. The second example, which is the more pertinent for our purposes, is that of a corporation that claims a certain tax is imposed only on that corporation and not on any other corporation in the country. The argument is clear and notable, and renders discussion. However the violation, to the extent it exists, is not one of human dignity as applied to a corporation but of the right to property. The approach that infringements upon human dignity do not apply to a corporation, does not absolve the state from its duty to fend off the argument that the statute infringes upon the right to property, even if that infringement stems from a discrimination claim. Clearly, fleshing out the infringement upon property is different than fleshing out a direct infringement upon equality. The State may overcome the argument about violations of property rights in at least two ways: first, that there is no violation, and second, that the violation withstands the limitations clause. In our case, to me, the State’s response on this point is satisfactory even if we assume that a corporation has a constitutional right to equality, and this is also true when we explore the lack of equality in the context of infringement of property rights.

18.On one hand, Eitanit claims it suffered discrimination because it was required to shoulder the costs of removing asbestos waste discarded by asbestos importers. Additionally it is required to bear removal costs instead of those who have purchased final asbestos-cement product from Eitanit over the years, used them, and ultimately discarded of them. Obviously, there are financial ramifications to this.

Yet these arguments must be rejected in light of the statute’s language. The “waste population” subject to section 74 is industrial waste that came from operations at Eitanit’s factory. This definition excludes two types of waste: (a) completed asbestos-cement products, such as pipes and boards, that have been passed on to end users and then dismantled, discarded and gradually became waste (“the first exception”); (b) asbestos waste that came from production processes of others besides Eitanit (“the second exception”). These two exceptions are not included in the definition of “waste population” to which section 74 applies.

To clarify, the record reveals that professionals can easily distinguish asbestos waste that originated in production processes from completed asbestos-cement products that have been discarded post-use (the first exception). First, asbestos waste is a batter-like, non-homogenous mix that comprises of lumps and excess raw asbestos, cement, board and pipe debris made out of asbestos-cement. Additionally, some of the waste sites are built in layers: a layer of waste, above it a layer of soil, then again a layer of waste, and so on. In some sites the sacks used to bring in the waste were visible. These techniques indicated the methodical and lengthy process of waste removal, through burial or surfacing. These are not  random or accidental piles of asbestos-cement products that have been worn out and discarded absentmindedly.

This said, the language of the statute releases Eitanit from paying for the second exception – asbestos waste that originated in the production processes of others. This raises a separate question: how do we know that Eitanit will not be required to pay for waste that did not come from its own factory, under the second exception? There are several indications for this. First, section 74 targets only waste found in a radius of 15 KM from Eitanit’s factory. Second, Eitanit’s factory was at the time the only factory in Israel to process raw asbestos into final asbestos-cement products. The industrial waste from these production processes has unique characteristics, as discussed above. Other factories processed completed asbestos-cement products, and thus their industrial waste would have been consistent of only asbestos-cement and dust. Third, there is no evidence that other factories had indeed removed their waste in the same manner Eitanit did. Fourth, there is no evidence that asbestos importers operating in Israel alongside Eitanit at the relevant time, distributed asbestos in the area, and in any event the State clarifies that those importers used materials for acoustic and thermal isolation without cement. Fifth, in a survey from 2007, different witnesses reported out of their personal knowledge purchasing or receiving the waste from the factory and scattering it in the ground. These finding have been confirmed, the State argues, by soil samples and drilling.

The mounting of all this evidence, along with the above findings about the type of waste and its systematic discarding, indicates – to me – that there is a “presumption of burial” against Eitanit in the context of section 74. This presumption means that asbestos waste with certain common characteristics, that was buried in systematic and organized methods, all in a limited and confined area in the factory’s vicinity, would have come out of Eitanit’s factory. Lest we forget: this is a rebuttable presumption. After all, the legislature afforded Eitanit a right of hearing before the Minister, about specific areas where waste did not originate from Eitanit’s factory (according to section 74(d) of the Act and according to the instructions by the Minister – see above section 5, and the State’s attorney declaration that the content of the objection and the relevant instruction’s interpretation – p. 9, line 28 of the hearing transcript).

To summarize, the Act requires Eitanit to bear the cost of removing industrial waste that originated from the operations in its factory. Eitanit’s arguments in this regard cannot be addressed to the legislature, as the legislature expressly stipulated that Eitanit is only responsible for its own waste. These arguments may be relevant, at most, at the administrative level, if and when there are challenges to the Act’s implementation, and not at the clearly constitutional level we are concerned with here.

19.The argument regarding the end users, who received asbestos waste from Eitanit and used it to cover soil, is more complicated. Analytically, Eitanit’s argument is twofold. First, Eitanit was required to pay while the end users were exempted from direct payments. Second, Eitanit was required to pay for waste from which the end users also benefited. In my mind, the answers to the first aspect effectively resolve the difficulties in the second aspect. The main point is there is a relevant difference that justifies distinguishing the end users, who were not directly required to bear costs, and Eitanit. Recall that not every distinction is prohibited discrimination. Warranted distinctions, which are based on a relevant difference, will not usually be seen as prohibited discrimination (for example see the matter of LHB, para 77; HCJ 10203/03 The National Census Inc. v. The Attorney General, para 53 of Justice Procaccia’s opinion (August 20, 2008)). To me, there are three differences between Eitanit and the end users: the awareness test, the control test, and the profit test. Each and every one of these independently, let alone put together, constitutes a relevant difference that separates Eitanit from the end users and that warrants the distinction between them – from both aspects.

First, it appears from the material before us, that in the relevant time period, Eitanit had a notable advantage of information compared to the end users. This advantage manifested, primarily, in scientific knowledge that existed – or should have existed – for Eitanit even at that time about the potential health risk posed by asbestos waste. Indeed, there is no intention to find fault in Eitanit on neither the criminal or tort levels. Rather the presumption is that Eitanit must pay due to strict liability, not as a result of a finding that it breached any duties of care. However, the focus is on Eitanit’s awareness of potential risk caused by asbestos compared to other entities – the end users – to whom it asks to be considered similarly situated. The relevance of the awareness issue will be discussed more below.

In May 1969 Professor Schilling visited Eitanit’s factory. At the time, Professor Schilling headed the Department for Occupational Health at the London School of Hygiene & Tropical Medicine. After his visit, Professor Schilling authored a report, which was attached as Annexure 7 to the Respondents’ reply. In the report, Schilling points to severe health risks that are caused by exposure to dust in asbestos factories, including asbestositis, lung cancer and mesothelioma. He emphasized that the factory must take immediate precautions to reduce the risk of these diseases’ development.

In 1970, an organization of Israeli occupational doctors dedicated a conference to issues of employees and asbestos-cement factories. During the conference, an article written in collaboration with the factory representatives was presented. This article was submitted as Annexure 8. As early as the opening paragraph, the authors state that there is “clear awareness of health risks caused by asbestos and the prevalence of cases of asbestositis on one hand, and cancer on the other.

In April 1976, Yekutiel Federman, one of the holders of controlling interest in Eitanit, sent a letter to the factory manager, Mr. B. Friedrich. In that letter Mr. Federman states that: “The asbestos industry is currently the target of a witch hunt… Should we receive a positive report that proves the allegations are exaggerated and are not serious, and that it is more dangerous to walk down a street breathing in gas emissions from cars, and this report will be prepared by the Ernst Bergman Foundation, which is renowned in the science community, we will be able to combat the attacks academically and scientifically.” This letter, too, demonstrates that Eitanit was aware, at this stage if not sooner, of the scientific claims that were common at the time about the severe health risks caused by asbestos.

What is more, certain aspects of that time’s labor laws indicated the dangers of asbestos. As early as 1945 the British Mandate defined asbestositis as an occupational disease. This meant that a diagnosis of a factory worker with the disease was required to be reported. Additionally, the employment of women and teenagers in processing asbestos or its industrial use was prohibited. These directives were incorporated into Israeli law in the early 1950s. In 1964 The Safety at Work Regulations (Medical Examinations of Workers with Asbestos Dust, Talc and Silicon) 1964 were legislated. The Regulations set restrictions on the ways asbestos workers were employed, and required that workers receive periodic medical examinations. In 1978 The Safety at Work Regulations (Restrictions on Spraying Asbestos) 1978 were added. Those prohibited spraying crisp asbestos for isolation purposes. All of these were in force during the same period when, by Eitanit’s own admission, it passed on the waste to the end users, let alone when the waste was buried in the ground. Later, in 1984, the old Regulations – from both 1964 and 1978 – were incorporated into The Safety at Work Regulations (Occupational Hygiene of the Public and Workers with Harmful Dust) 1984. The new Regulations additionally prohibited the use of asbestos to pave roads. In 1988 this prohibition was expanded to manufacturing, importing and selling asbestos for road paving.

On the other hand, we do not have a sufficient factual foundation about the scope and depth of the end users’ awareness of the health risks caused by asbestos waste. However, on its face, it is doubtful that Eitanit and the end users are in the same category as far as what was known or should have been know. For decades, Eitanit imported raw asbestos, processed it into asbestos-cement, and manufactured final products from it. In effect, it was the dominant – if not only – entity in this industry. By virtue of this position Eitanit was likely familiar in real time with the relevant scientific research about Asbestos’ health risks. Not only did Eitanit apparently follow the developments, but was an active observer in the research (see, for example the article from 1970 and the Mr. Federman’s letter from April 1976, mentioned above). As an employer of asbestos workers, Eitanit was also subject by law to different duties that reflected the health risks asbestos posed. The end users, on the other hand, are in a different category. The material shows that they were not manufacturers of asbestos, nor were they industrial factories, but mainly the towns, kibbutzes and private persons in the area. These are probably not experts in asbestos, asbestos employers or workers, or even active in the scientific research scene.

Analogously, tort law attributes significant weight to knowledge gaps between parties. For instance, a doctor’s duty to disclose to clients stems from the presumption that there are major knowledge gaps between the parties, though their scope may change from case to case (see for this topic, CA 2342/09 Joubran v. Misgav Ledach Hospital (April 6, 2011)). Similarly, the scope of an insurance agent to a consumer depends, among others, on whether there are information gaps between the consumer and the insurance agent or insurer (LCA 5696/06, Saif vs. Mari, para 14 (Sep 21, 2009)).

Truth be told, factoring in the knowledge gaps between Eitanit and the end users is only part of a broader context. Eitanit is distinct from the end users because the products and waste left a factory it owns. This fact points to the material difference between Eitanit and the end users – Eitanit is the manufacturer of the waste. The end users were Eitanit’s customers. These are two different groups that must be distinguished. The distinction is consistent with the principles of EPR, mentioned above. The duties placed on manufacturers are not as the duties placed on the user. The manufacturer has control over the product’s design, assembly, and finalization. In any event is it highly logical to place extended liability on the manufacturer and placing financial burdens upon it, both for reasons of justice and fairness and of economic efficiency. In the matter at hand, the control test has an additional aspect. It is appropriate to weigh the fact that arises from the record, that Eitanit sold the waste for a low price, sometimes giving it away. This, too, solidifies the link between Eitanit and the waste, including that which is not on factory grounds, but in the land around it up to 15 KM. The awareness test thus connects to the control test and to economical aspects, and we must not neglect the profit test.

Applying economic approaches to law, it is clear that Eitanit and the end users are not similarly situated, as a function of the profit test. Comparative case law, primarily American case law, finds merit in placing the costs of asbestos removal on the manufacturing corporation because of its status as manufacturer. This consideration is relevant not only from an economical stand point, which may justify shifting the financial burden of removing hazards to the manufacturer’s shoulders, but also for reasons of justice and fairness. From this perspective, there is no discrimination against the petitioner but achieving the statutory purpose of “the polluter must pay.” We come back to this point when examining the issue of a worthy purpose which is, of course, one of the tests established by section 8 of Basic Law: Human Dignity and Liberty.

To summarize this point: there were knowledge gaps – actual and theoretical – between Eitanit and the end users. Moreover, Eitanit, as a manufacturer is clearly distinguishable from the end users. This distinction reflects the difference between the two aspects of the control test, as well as the profit test. The combination of all these – awareness, control and profit – establish, in my view, a relevant difference between Eitanit and the end users, in terms of its obligation to share up to half of the costs of removing the waste.

20.Eitanit additionally, claims it suffered discrimination compared to the local authorities. Eitanit bases its claim on the right to be heard by the Minister which section 74 grants the local authorities and which allows them to reduce the rate of their participation in funding the project. In reality, an arbitrary and low rate of only 10% was set in regulations which go as far as permitting “payment” of this rate by provision of services. Eitanit, on the other hand, was denied the option of carrying out the project on its own.

Here, too, I believe Eitanit and the local authorities are not similarly situated. There is a relevant difference between Eitanit and the local authorities, based on reasons stated above: Eitanit is the manufacturer of the waste, and created its implications. The local authorities, as the record reflects, are not even part of the “end users” addressed earlier. Their link to the waste is indirect, and they are merely a default in funding the project. Furthermore, the mechanism set in the Act splits the costs equally between Eitanit (on one end) and the local authorities and the state (on the other end.) Each and every Shekel that is reduced from the local authorities’ obligations will be added to the bill served to the State. Put together, the local authorities and the State will fund only half of the project’s cost. The result, therefore, is that – willing or not – taxpayers will directly shoulder at least half of the project’s costs. For this reason, too, the discrimination claim must fall.

21.Finally, Eitanit claims it was discriminated against in comparison with future polluters. It argues the Act stipulates that anyone creating asbestos hazards will bear the costs of removal according to their share of liability, and they will be permitted to remove the hazard (section 11(e) of the Act). Additionally, a bill for Prevention Soil Pollution and Restoration of Polluted Grounds 2011 (“the bill”) is pending before the Knesset. The bill, Eitanit maintains, is more lenient toward owners of polluted properties and considers the extent of their fault. Contrastingly, Eitanit bears the brunt of a strict liability standard regardless of fault and it is denied the opportunity to remover the waste on its own.

Regarding the claim of discrimination in terms of the bill, I see no reason to discuss a claim of discrimination in a bill that has yet to have been passed. As far as the discrimination claims about other statutory provisions go, I do not find it necessary to examine these provisions in detail, nor to consider whether they are discriminatory against Eitanit or perhaps favor it. This is because the project of removing asbestos waste from the Western Galilee merits regulation unique to it. I will elaborate on this point below, in relation to the argument that the Act constitutes personal legislation. As an aside, recall that the new asbestos statute prohibits manufacture of asbestos products, places full responsibility for pollution on the polluter, and only allows the polluter to remove the waste independently with the property owner’s consent. On its face, it does not appear that the statutory arrangement that applies to the petitioner is clearly more egregious than statutory arrangements that will exist going forward. Quite the contrary.

22.To conclude this part, I accept Eitanit’s argument that section 74 infringes upon its property rights. However, Eitanit’s argument about a violation of its equality right, insofar that it is a right independent of the property right, and this for the reasons described above. Based on these conclusions, I move on to examine whether the infringement on Eitanit’s right to property passes the tests set in the limitations clause of section 8 of Basic Law: Human Dignity and Liberty, entitled “Violations of Rights”:

“There shall be no violation of rights under this Basic Law except in legislation befitting the values of the State of Israel, designed for a worthy purpose, and to an extent no greater than required or by such a law enacted with explicit authorization therein.”

B. Violation of Rights In Legislation Or By Explicit Authorization Therein

23.Eitanit’s position is that the said violation of the right to property (and in its view the right to equality, too) is not in legislation or by authorization in legislation, because the Act constitutes personal legislation, with a specific target – Eitanit. Eitanit maintains that a statute that is not generally applicable cannot be considered legislation for the purposes of the limitations clause.

I cannot accept Eitanit’s position. Recall that the case law found the prong “in legislation or by authorization therein” to be a formalistic test that seeks whether the infringement upon basic rights was done by primary legislation or was authorized by primary legislation (see the matter of The National Census, para 9 of President Beinisch’s opinion; the matter of L.H.B, para 104 to Justice Procaccia’s opinion; see also Aharon Barak, Interpretation in Law Volume 3 – Constitutional Interpretation, 489-498 (1994)). To compare, section 5 of the European Covenant of Human Rights addresses ways to limit liberties, including a requirement that the limitation is done in legislation, or in the Covenant’s language: “in accordance with a procedure prescribed by law). Similar language appears in section 10(2) of the Covenant regarding limits on free speech. The European Court of Human Rights pronounced, in various contexts, on the interpretation of “in legislation,” and concluded that in order for a particular provision to be considered legislation for these purposes, it must be clear and accessible, that is, published to everyone (see: Tonilo v. San Marino & Italy, §46 (26.6.2012); Telegraaf Media v. Netherland, §§89-102 (22.11.2012)).

The piece of legislation at hand is a product of extended preparation. After passing the Knesset’s first reading, the Act was considered by the Knesset’s Interior and Environmental Protection Committee. The Committee dedicated over ten meetings to discuss the details of the Act. During the discussions, the constitutional issue was also examined. Eitanit argued boisterously, but its arguments were rejected. Once the Committee completed is process, the Act passed in second and third readings and was published officially. This in mind, the argument that the final produce is not legislation must fail. It appears Eitanit’s arguments about the lack of the Act’s general application repeat, in a sense, the arguments about discrimination against it – arguments I have addressed at length above – or, in a different sense, are claims about the Act’s wrongful purpose, claims that I will address below. And again recall: the Act does not expressly mention Eitanit or its factory. Instead, it uses terms such as “asbestos companies” and “factory for the manufacture of asbestos.” It is true, however, and undisputed, that only Eitanit meets the definitions in section 74. This matter might increase the need to guarantee the Act is proportional and does not overly infringe Eitanit’s property rights. Still, that the Act effectively only applies to Eitanit is not in and of itself sufficient for a finding that the Act is not “legislation.”

C. For a Worthy Purpose Befitting the Values of the State of Israel

24.What is the purpose of section 74, and is this purpose worthy and befitting? Section 1 states the Act’s general purpose: to minimize asbestos hazards in Israel. This is also the source for section 74’s actual purpose: to launch a project for the removal of asbestos waste from the Western Galilee. The explanations that accompanied the Act’s bill, as well as the State’s response in this petition, described how this severe and unique environmental hazard was formed in the Western Galilee. A very large amount of asbestos waste was scattered or buried in many dozens of sites. Some of the waste is buried deep underground, and some is used in surfacing trails, private gardens, agricultural land and the like – all, as mentioned, in dozens of different locations. I elaborated upon the harms caused by this waste in depth, and it is unnecessary to repeat it all here. The purpose of section 74, therefore, is to remove or reduce as much as possible this health risk, which in some ways is a “time bomb” threatening the health and welfare of many of the area’s residents. There is no doubt then that it is a worthy and important purpose, and the sooner it is achieved, the better.

This purpose is not only worthy, but also befits the values of the State of Israel as a Jewish and democratic State. I recently discussed Jewish law’s approach to protecting the environment, from a religious and civil perspective (HCJ 1756/10 The City of Ashkelon v. The Minister of the Interior (January 2, 2013)). I specifically mentioned Jewish law’s approach to attending to waste and the financial mechanisms it put in place in order to achieve this.

Additionally, the purpose of section 74 is worthy because it realizes area residents’ rights to health and to quality environment. There is no need here to go into the constitutionality or the scope of these rights (see: HCJ 3071/05 Luzon v. The Government of Israel (July 28, 2008); HCJ 11044/04 Solomtin v. The Minister of Health, paras 11-13 to Justice Procaccia’s opinion (June 27, 2011); Daniel Sperling and Nissim Cohen, The Impact of The Arrangements Act and Supreme Court Decisions on Health Policy and the Status of the Right to Health in Israel, Laws (4) 154, 218-225 (2012)). All these are complex, serious and weighty questions, but they are irrelevant to the case at hand. All that matters here is that cleaning waste is meant to remove a grave hazard that threatens the health of residents, and it is a welcome initiative. As presented above, this concern to the health of residents is typical of democratic states, which have invested substantial efforts in regulating removal in modern environmental legislation.

25.The State presents an additional reason for the way section 74 sets the funding mechanism: the principle of “the polluter must pay”. Truthfully, I am not convinced this principle is in fact the purpose of the Act in terms of the limitations clause. Arguably, this principle justifies choosing this particular mechanism, rather than the legislative goal. Put differently: it is the justification for the means chosen to achieve the end. Therefore, the principle must pass the limitations clause in the context of proportionality, not in terms of purpose. Yet the state explicitly argues that the Act has the purpose of realizing the principle of “the polluter must pay” (p. 9 of the record). However, even under this approach the principle is not a single purpose, but is intertwined with the central purpose, which is cleaning the Western Galilee from Asbestos Waste.

As I said, I doubt whether the principle of “the polluter must pay” is a purpose – even secondary – of the Act. It is possible this position, which upgrades the means to the level of an end, is meant to boost the legitimacy of the selected funding mechanism. Another possibility is that the State grabbed the bull by its horns. In other words, being aware of the distinct difficulties presented by the principle of “the polluter must pay” and by applying it, the State categorized it as a secondary purpose, willing to subject it to the proper constitutional review. But, as I will clarify, I cannot accept that this categorization of the principle as an end will injure Eitanit and prevent it from examining the proportionality of the funding mechanism established in section 74. For the purpose of ruling in this petition, I am willing to assume – for the sake of a complete discussion – that the principle of “the polluter must pay” is a secondary purpose of the Act in terms of the limitations clause. This approach demands that the matter be subject to a strict review of proportionality. Lest we forget, the worthy purpose test is but a threshold requirement (Aharon Barak, Proportionality in Law, 297 (2010)). That is, in the absence of a worthy purpose, a statute must fail constitutional review. For this reason precisely the worthy purpose test is not conclusive. It is not the end of the enquiry, but its beginning. The difficult task of constitutional review is yet before us. As former President Barak wrote: “It is a mistake to examine constitutionality of means through the lens of the end’s constitutionality. It would be too premature” (Id. at 299). Thus we must first evaluate whether the principle of “the polluter must pay” is indeed a worthy purpose befitting the values of the State of Israel. This discussion is separate from the discussion whether the principle of “the polluter must pay” and its application in the present case is proportional, given that it places strict liability, and does so retroactively.

The principle of “the polluter must pay” is simple. Whoever caused the pollution will fund its removal and be liable for harms that have and will continue to be caused. This principle stems also from efficiency reasons, with the premise that placing the financial burden on polluters will incentivize them to minimize the scope of the pollution. The goal is to reduce the amount of waste to be removed and to encourage the polluter to take precautions and develop “green” technology. This economical approach finds support in the theory of costs internalization. Coupled with the considerations of justice, which dictate that it is unfair for the polluter, who has profited from polluting, would deflect costs toward the public (see: Marsha Glefi, Ruth Plato-Shinar and Amichai Kerner, Lenders’ Liability for Environmental Hazards Caused by Borrowers, The Attorney (50) 439, 443-47 (2010); Isaschar Rozen-Tzvi, Who The Hell Does This Waste Belong To? Waste Removal and Environmental Justice in Israel, Law Research (23) 487, 553-54 (2007)). This approach was recognized by many democratic states, as reviewed above.

We will note that in Jewish law, too, the basic obligation of waste management is placed on the waste’s owner. It is thus generally prohibited to remove raw materials – such as rocks and dust – or actual waste into public spaces, and the owner is expected to be liable in torts, or subjected to fines (Tosefta Bava Kamma 2; Tosefta Bava Metzia 11, Babylonian Talmud, Bava Kamma 30, 1; Maimonides, Yad ha-Chazaka, Hilchot Nizke Mammon 13, 13-17; Shulchan Aruch, Choshen Mishpat, 414, 2; also see my opinion on the matter of The City of Hulon.)

The principle of “the polluter must pay” is well established in our current law. It is also the answer to the Petitioner’s claim that section 74 is out of place in the legal landscape. The Prevention of Environmental Hazards Act (Civil Suits) 1992, authorizes courts to order anyone who causes environmental hazards to cease from doing so, to correct the hazard, or to restore, and this regardless to the level of fault, if any (section 2-4.) Additionally, a string of legislative amendments in this vein was incorporated into The Environmental Protection Act (The Polluter Must Pay) (Legislative Amendments) 2008. Further, in terms of industrial waste, the principle of “the polluter must pay” translates into a similar principle of “manufacturer responsibility”. That practical meaning of this is that the costs of taking care of and recycling waste will generally be placed upon the factory that manufactured the polluting products in its production processes (see above regarding EPR policies). This has many aspects in the new environmental legislation in Israel. We will mention here The Environmental Care for Electric and Electronic Equipment and Batteries Act 2012, The Regulation of Care for Packaging Act 2011, The Beverage Container Deposit Act 2001 – amended in 2010 to set quotas for bottle collection by manufacturers, The Removal and Recycling of Tires Act 2007, and The Preservation of Cleanliness Act 1984 – amended in 2007 to set a mechanism for burial tax (see the matter of The City of Hullon, para 31 of Justice Barak-Erez’s opinion).

Incidentally, the State points out that the principle of “the polluter must pay” is reflected in statutes that were already in effect when Eitanit created the asbestos waste. For instance, section 54(1) to The People’s Health Ordinance, num. 40 of 1940 stipulates that the local authority or the ministry are authorized to order a person who created a hazard to remove it. For these purposes, a hazard is any place whose state or use endanger or damage public health (section 53).

To summarize, Eitanit does not dispute that the purpose of the Act insofar that it is to remove asbestos waste from the Western Galilee is a “worthy social purpose” (see section 107 of the petition). The Petitioner’s primary opposition is for the principle of “the polluter must pay”, particularly in terms of the strict liability standard and the retroactive application. In this context, Eitanit challenges the efficiency of applying the principle of “the polluter must pay” and the fairness in applying it. Therefore, assuming that “the polluter must pay” is a worthy purpose because of its contribution to ecology, the question remains whether the funding mechanism is proportional. This question leads us to the main issue, which is the establishment of retroactive and strict liability.

D. Proportionality

26.The last requirement of the limitations clause is that the infringement of a constitutional right is “to an extent no greater than required”. This is the proportionality requirement. The case law has articulated three sub-prongs for evaluating the proportionality of infringements of constitutional rights: the rational connection test, the least restrictive means test, and the cost-benefit test (narrow proportionality). 

Before we begin, recall that the proportionality criterion does not dictate selecting only one mean to achieving the legislative end. There is a collection of – perhaps many – alternative measures, all of which may in themselves be proportional. These measures are different in terms of the scope of their infringement on constitutional rights, as well as how they may achieve the legislative purpose. This creates a range of proportionality within which the legislature may operate. The legislature has room to maneuver, and it may choose certain alternatives over others so long as they sit within the range of proportionality (compare: HCJ 2605/05, The Academic Center for Law and Business v. The Minister of the Treasury, para 46 of President Beinisch’s opinion (November 19, 2009)).

(1) Rational Connection

27.Under the first proportionality sub-test, we must examine whether there is a logical link between the Act’s purpose and the means selected to achieve it. As I have discussed above, for purposes of our discussion, the Act has two goals: to clean the Western Galilee of asbestos waste, and to realize the principle of “the polluter must pay”. These are the legislative ends. The means that legislature selected is the mechanism set in section 74, specifically its funding aspect (which is at the core of this petition). We will explore the link between the selected means and each of the purposes.

28.Regarding the first purpose, I do not find it necessary to elaborate, because the link here between the means and the end is practically obvious. The first purpose is to remove asbestos waste from the Western Galilee. The selected means is the relevant project, arranging for its budget and funding and authorizing the Minister to establish operative regulations. The means leads directly to the end.

29.As for the second purpose, the case is more complex. Eitanit raises a string of questions about the link between the funding mechanism established and the principle of “the polluter must pay”. Eitanit’s criticism includes four arguments. First, Eitanit claims there is no evidence it scattered the waste. Second, Eitanit is subjected to strict liability, and it is required to pay for conduct that was not legally proscribed at the time. Second, Eitanit maintains that a significant portion of the waste was distributed by the end users and not by Eitanit. Third, Eitanit challenges the strict liability imposed upon it, along with the requirement to pay for conduct that was not statutorily prohibited at the time. Fourth, Eitanit argues that it must pay for past-conduct such that the aspect of channeling behavior and deterrence is non-existing here. Retroactive payment, Eitanit believes, is also unfair. Therefore there is no link, to Eitanit, between the type of payment the Act imposed upon it and the principle of “the polluter must pay”.

The first argument raises a factual issue, which I have addressed above. Repeated briefly, the accumulation of several indications demonstrates that there is a “presumption of burial” against Eitanit in terms of section 74: the asbestos waste, that has similar characteristics, was buried by organized and systematic techniques, and all in a limited area around the factory. Even if this not an absolute presumption, Eitanit has the opportunity to argue that the waste in a specific location did not originate in its factory. To what extent a petitioner may attack the factual basis for the Act is a good question. I my view, such attack is not identical to attacking the factual basis for an administrative decision, or even to an administrative petition in the High Court of Justice, or to a factual dispute between parties of the civil or criminal case. Yet, as mentioned before, the broad legal issue need not be decided here, as the factual basis is well substantiated. The truly relevant question is what this factual basis means.

The second argument does not negate the rational connection between the means and the end either. It is true that some of the waste was layered on the ground by the end users. However, one of the important justifications for the principle of “the polluter must pay” is cost internalization by whoever benefited from creating the pollution. In our case, Eitanit fits this criterion because it profited from the production processes that resulted in buildup of industrial waste. Additionally, it profited – albeit indirectly – from passing the waste from the factory on to the end users. In any event, there is a clear rational link between the means – mandating that Eitanit share the cost of removing the waste – and the relevant purpose – the principle of “the polluter must pay”. Eitanit’s arguments on this point may be seen from a different angle that focuses the discussion on the question of equal burden. In other words, why would Eitanit alone shoulder the financial burden and not the end users? The answer is twofold. First, there is no discrimination between Eitanit and the end users. I discussed this in depth above. Second, the possibility of a different allocation of financial burdens as to reduce the harms to Eitanit. I will discuss this below, when analyzing proportionality’s second and third sub-prongs.

The third and fourth arguments revolve round the strict liability and its retroactive application. Regarding the rational link between the means – the funding mechanism – and the secondary purpose – the principle of “the polluter must pay,” it seems that imposing payments on the entity that created the hazard and benefited from it advances this purpose and puts it into practice. Refer to the discussion above as to how the principle of “the polluter must pay” is based on justice and fairness. It is only reasonable and logical that whoever created a hazard and was the primary beneficiary of it would be the one required to pay for it. In this context, it would be appropriate to combine the two purposes the State finds in the Act. It is necessary, as Eitanit also agrees, to remove the asbestos waste from the Western Galilee. The legislature elected, as did other legislatures in democratic states, to impose special costs on the asbestos company – the manufacturer and direct profit-maker – compared to others, including the public.

To sum up this point, this is not a case where the means do not promote the end. The contrary is true. Recall that the “the rational connection test, like the worthy purpose test – is a threshold test. It is not a balancing test. It does not weigh the worthy purpose against the infringement” (Proportionality in Law, p. 387). However, there is the approach that the first sub-prong is not technical: “this sub-test is not satisfied with the existence of a merely technical causal connection between the means and the end. Therefore the requirement for a rational link is designed, among others, to restrict arbitrary, unfair or illogical means” (HCJ 2887/04 Abu Madigam v. Israeli Land Authority, IsrSC 62(2) 57, para 37 of Justice Arbel’s opinion (2007)). In my own opinion, the natural place for testing the justice and fairness of a means is in the contest of the second sub-prong, and more so in the third sub-prong. That said, I am willing to assume that in extreme cases where the means’ arbitrariness and unfairness are obvious this should be considered even in the first sub-prong. This certainly is not the case: here, applying the second and third sub-prongs will shed light on the extent of justice and fairness in the chosen means.

(2) The Least Restrictive Means

30.We now approach proportionality’s second sub-test. The question before us is whether, of all the alternative means that may achieve the purpose of the Act, the means selected is that which least infringes Eitanit’s right to property. Put differently, we ask whether there is a less restrictive alternative that will similarly achieve the Act’s purpose (compare HCJ 10202/06 The City of Nahariya v. The West Bank Military Commander, p. 12 (November 11, 2012)).

In this context, Eitanit identifies two alternatives for the mechanism established by the Act. One is to “repair” the sites where the waste serves to cover the land. The second is allowing Eitanit to execute the removal project on its own. We will explore each alternative.

31.The first alternative is only generally argued by Eitanit, without adding details that can illuminate the primary relevant question: is it expected to achieve the same purpose while harming Eitanit less. Recall, that, as Eitanit presented things, re-covering and sealing the paths that were surfaced with asbestos is a partial solution to the waste problem at best. Whether this is a real fix, including for the paths themselves, is doubtful. Moreover it is unclear to Eitanit what the solution for other types of waste, such as waste that was buried underground. We cannot therefore find that the suggested alternative would sufficiently accomplish the Act’s purpose of cleaning the Western Galilee from asbestos waste, while lessening the harm to Eitanit.

32.We are left with the second alternative: Eitanit’s consent to removing the waste independently, instead of paying for removal (the “self-removal” alternative). However, the Petitioner did not meet its burden to prove that this alternative will serve the Act’s purpose adequately.

The task of removing the asbestos waste was discussed among the parties for a long time. Eitanit’s proposal to remove the waste, through a sub-contractor it will employ, was also subject to discussion. After several rounds of negotiation, the proposal was rejected. I will here refer to a detailed and reasoned letter that Mr. Oshik Ben-Atar, a senior deputy to the Accountant General, sent to Eitanit in November 2010, in which the State notified Eitanit that its self-removal proposal is impractical. The letter states that Eitanit estimated the project to cost between NIS 166-300m, if not more (see also section 120 of the petition). These are substantial gaps that elicit concerns that Eitanit’s low estimate will prevent it from completely and successfully executing the project. This is coupled with the doubt that Eitanit has, on its face, little incentive to execute the project as best as possible. This is also because it is not expected to profit from executing the project and it has no incentive to conduct thorough surveying and locating all the polluted sites.

Eitanit maintains the recently completed removal of asbestos from a certain area, under State supervision, and the costs of that removal was approximately 65% lower than the costs estimated by the State. The State, on the other hand, maintains that the experience with Eitanit in this regard is not positive. The State supervises Eitanit’s work to restore waste sites in Sheikh Danon and in Shlomi, as well as work to remove asbestos waste in other areas. These projects have been found to have professional deficiencies, and these deficiencies have caused major delays in the projects.

I do not intend to rule on the factual disputes between the parties, as if this were a civil dispute or an administrative petition. Such a ruling is not necessary for our purposes. We are concerned with section 74 of the Act, not with administrative or appellate review. The question before us is whether there is an alternative means that will impose less harm upon Eitanit, while achieving the legislative purpose behind section 74. From this perspective, Eitanit has not met its burden. I am not persuaded that the self-removal option will lead to the end that inspired enacting section 74 – cleaning the Western Galilee from asbestos waste. We were even presented with material that supports the State’s position, or at the very least demonstrates its logic.

33.The perspective we so far employed has been negative: whether there are alternatives that achieve the statutory purpose while lessening the harm caused to Eitanit. Eitanit emphasized this approach. However, the issue can be examined, simultaneously, in a positive perspective: whether the mechanism elected by the legislature includes checks and balances that reduce the harm caused. In this contest there are five elements: (1) Eitanit would be required to pay no more than half of the estimated removal costs – half, perhaps less but certainly no more; (2) In any event, Eitanit’s funding obligation shall not exceed NIS 150m; (3) The funding mechanism the legislature selected, along with supplementary instructions from the Minister, ensure that this is not a fine or a compensation. Eitanit’s financial obligation will be used to (partially) cover the costs of removal alone; (4) The relevant removal project is limited to a radius of 15 KM around the factory. Section 74 does not compel Eitanit to participate in funding the removal of asbestos waste if that waste is in locations beyond that area. Finally, the Minister’s instructions create a mechanism of supervision and checks that will allow Eitanit to challenge each and every payment it is required to submit in terms of specific waste sites.

The five elements mentioned are no hypothesis or creative interpretation. These are checks and balances built into the explicit language of section 74 and its supplementary instructions. They reduce the harm caused to Eitanit’s property, while still achieving the primary purpose of cleaning the Western Galilee of asbestos waste and the secondary purpose of “the polluter must pay” (to the extent this purpose exists).

The elements above can be categorized through three questions: how much, for what, and how. “How much”: 50 percent, which shall not exceed NIS 150m. In examples from the United States and from other countries, some legislation required funding up to 100 percent, without setting a maximum amount. The gap in the amount is substantial. It is another rebuttal for Eitanit’s argument that it would have been appropriate to impose some liability for removing the waste upon the end users. As mentioned before, I am not persuaded that the maximum amount set does not reflect a fair estimate of potential costs. Moreover, even were the Petitioner to dispute the estimates for removal, because the State bears half the costs, it has no interest in inflating costs. “For what”: for cleaning a defined area. The significance of this is that there is no penalty or sanction. Restricting the project that Eitanit must fund further supports the conclusion that the means of imposing liability is not an end unto itself. The “for what” element is joined by the scope of the territory – a 15 KM radius around the factory. This area is not only limited but also reflects the history of Eitanit’s conduct in terms of distributing industrial asbestos waste. This history include the fact that Eitanit buried some of the asbestos waste, as well as passed it on to the end users in the area for very low cost, or no cost at all. This supports the assumption that implementing the principle of “the polluter must pay” is neither arbitrary nor irrational. The third question is “how”: the section includes an internal mechanism that ensures that Eitanit is able to present its position as to the periodical invoices it would receive. The reservations Eitanit may raise in this context are not limited to calculations, but also to the issue of whether particular piles of waste in fact originated in its factory. The State stipulated this in section 121 of its responding papers. This element contributes to the proportionality of the selected means. The internal mechanism emphasizes supervision rather than top-down orders.

(3) Narrow Proportionality

34.We are thus left with the third and last sub-prong of constitutional review: the narrow proportionality test. This tests measures the appropriate ratio “between the public benefit of a statute subject to constitutional review and the infringement of a constitutional right caused by that legislation (the matter of The Academic Center, para 50 of President Beinisch’s opinion; see also HJC 2651/09 Association for Civil Rights in Israel v. The Minister of the Interior, para 22 of Justice Naor’s opinion (June 15, 2011). It weighs cost against benefit in the constitutional sense – social gain versus infringement of rights.

The case law expressed the view that “this is the most important of the three sub-prongs” (Justice Dorner in HCJ 4541/94 Miller v. Minister of Security, IsrSC 49(4) 94,140 (1995)). Either way, it is not a threshold test. Being the last obstacle in the constitutional journey a spotlight is pointed at this test. Though it is termed “narrow proportionality” is it not narrow at all. It poses a special challenge to judges. In my view, and precisely because of it, the test may develop over time – including setting standards for its application – more than the other sub-tests.

In any event – in our case – it is crystal clear that the Act is immensely beneficial. Therefore, it may be determined that the section is unconstitutional only if the infringement on Eitanit’s property rights – the other side of this equation – is so great that it eclipses the benefit.

By imposing financial obligation, section 74 infringes upon Eitanit’s right to property. Its arguments articulate three aspects that exacerbating the infringement: (1) the Act is personal; (2) the Act imposes strict liability; (3) the Act is retroactive. For each aspect, I first present the substance of the harm argued, then the actual scope of the harm: has the Act crossed the constitutional line and thus must be struck down; is the harm indeed as severe as argued or can it be mitigated by elements of the Act. This analysis will illuminate the constitutionality of the ratio between the cost and the benefit.

Personal Act

35.It is undisputed that even though the Act does not explicitly mention Eitanit, it is personal legislation as it effectively applies specifically to Eitanit.

In a broad sense, one of the basic traits of a statute, that in principle distinguishes it from other arbitrary norms, is its general application. This trait usually manifests in application over a non-specific group of subjects, or in that the statue mandates, prohibits or authorizes constant or organized conduct (aspects discussed by H. L. A. Hart, The Concept of Law (1961); see also Chaim Ganz, On The Generality of Legal Norms, Iyunei Mishpat (17) 579, 579-85 (1992)). This distinction constitutes one of the differences between a law that addresses the public at large and a judicial decision that addresses a single individual. Therefore, arguably, though this is a statute enacted through the proper legislative process, substantively, it is so flawed that it infringes Eitanit’s right to property.

I respond to this with the justification for Act targeting only Eitanit. It is not a question of numbers, that is, how many are subjected to the Act, and the fewer the number, the more personal the statute. Rather, we must ask whether there is good reason for applying a statute only to a limited group. The examination must be done carefully when few are concerned, let alone when only one factory is.

What is the context around section 74? It appears there is no arbitrariness, whim, or specific persecution. The legislature prioritized a project for cleaning the Western Galilee. The section was designed to respond to a unique situation – extensive accumulations of asbestos waste, in a defined geographical area, that was created systematically by one dominant entity. Eitanit presented no arguments to the effect that this is not exclusive to the Western Galilee. It should also be noted that Eitanit enjoyed its status as a lone and dominant manufacturer in the local asbestos market.

The heart of the matter is that Eitanit’s special position is not born of legislation but of reality. Presumably, and as reflected in comparative foreign legislation, in a more sizable country, the market would include more than one player. And yet, the Israeli Act was designed to remove the waste through the shared – but not full – participation of the entity that created it and profited from it. That this is a single entity does not compromise justice or fairness. From this perspective, I do not believe that the fact that Eitanit was a single factory indicates, in constitutional terms, excessive infringement of property rights. In my opinion, these considerations mitigate the alleged harm caused by the sections lack of general application. I will also note that to the extent that Eitanit claims that the Act’s lack of general application is discriminatory, I cannot accept this argument for the reasons detailed at length above, when discussing the issue of infringement of equality.

Incidentally, the Israeli legal code already includes complete statues that are clearly personal. For instance, President Haim Weitzman Act (Retirement and Estate) 1953 sets the retirement amount that was paid to the first President’s widow. Another example is the Bank Shares Settlement Act 1993, which addressed the nationalization and privatization processes of the four big banks at the time (Leumi, HaPoalim, Discount, and Mizrahi), in light of the bank shares crisis of the 1980s. These examples support the argument that unique situations calls for unique legislation, and may even justify personal statutes.

Strict liability

36.The Petitioner points to another factor that exacerbates the infringement upon its property: the de facto strict liability standard. In other words, the legislature imposed upon Eitanit liability for polluting activity it committed in the past, though on its face these activities did not constitute breaching any duty of care at the time, and in any event no court found otherwise. Eitanit argues this aspect exacerbates the infringement upon its property rights.

It is true that on its face, strict liability raises concerns and warrants examination. In my view though, three factors mitigate, or balance out, the constitutional challenge involved in imposing strict liability.

First, the support for imposing strict liability in comparative law, which I elaborate on further below. Second, imposing strict liability in the context of removing polluters relies on weighty considerations. I mentioned justice and fairness, along with the economic rationales of deterrence and cost internalization. Another justification is the evidentiary challenges that follow from a fault-based standard, and may be avoided through a strict liability standard (see above the discussion of European and American law). Third, I believe that in this case there is a unique element that takes a little bit of the sting out of strict liability. Foreseeability is a relevant consideration when it comes to strict liability. Thus in American law, for instance, The Third Restatement of Torts explains that strict liability for abnormally dangerous activity is desirable. Activity is found to be abnormally dangerous when several cumulative conditions are met including that the activity creates a foreseeable and highly significant risk of harm, and that the activity is not one of common usage even when the actor has taken reasonable precautions (Restatement (Third) of Torts: Liability for Physical and Emotional Harm §20 (2010); see further Gilad, p. 1293-97). In light of this, foreseeability sets the limits of strict liability in one sense, and justifies the imposition itself, in another. It should be noted that the Restatement is not binding law in the United States, but it is considered to reflect the current state of the law and is commonly used in American case law. It is also true that in the United States, waste pollution is regulated in specialized legislation. However, in my opinion, the above is relevant for constitutional challenges to strict liability.

Jewish law may serve to clarify the point. The Mishna states, in the context of torts, that “one will always err, whether by mistake or on purpose, whether awake or asleep” (Babylonian Talmud, Bava Kamma 26a). This is a type of strict liability. Maimonides qualifies the scope of liability:

“When do we say that the person asleep must pay? When two who slept side by side, and one of them rolled over and injured the other or ripped his clothing. But if one was asleep and another joined him and lay by his side – the person coming last is the wrongdoer, and if the person asleep caused the injury, the latter would be absolved. And likewise if a pot were placed next to the sleeping person and the latter broke it, he would be absolved, as the person who placed the pot is the negligent wrongdoer” (Mishneh Torah, Book of Torts, Hilchot Chovel U’Mazzik 1, 11.)

This teaches us that if, for example, a person sleeps in another’s home by a lamp and during their sleep they strike and break it, they must break it. However, if after a person has fallen asleep, someone places the lamp by their side, and during the night the sleeping person breaks it, they are not liable for the damage. The relevance to our matter is that even with a strict liability standard, putting an object in play without the knowledge of the injuring party, may absolve them from responsibility. This approach is reminiscent of the innocent owner defense: under the CERCLA, a landowner is not liable if at the time they purchased the land they “did not know, and had no reason to know, that they had any hazardous substance” (42 U.S.C §9601(35)(A)(i)).

In our case, the material shows that Eitanit’s activity with the waste was not conducted without any foreseeability or knowledge about the harms of asbestos. I have discussed this, when examining the knowledge gaps between Eitanit and the end users. Professor Shilling’s report from 1969 detailed the health risks caused by exposure to asbestos dust, including asbestositis and cancer. An article from 1970, authored in collaboration with representatives from Eitanti’s factory, states that there is “clear awareness of health risks caused by asbestos, and the prevalence of asbestositis cases on one hand, and of cancer on the other.” A letter from 1976 by Mr. Yekutiel Federman, one of Eitanit’s controlling shareholders, addresses the scientific research of the time that discussed asbestos health risks. Additionally, Eitanit, as an employer of asbestos workers, was subject to different labor laws that acknowledged the risks caused by asbestos: defining asbestositis as a vocational disease, prohibitions against employing teens and women in asbestos factories, the requirement for periodical medical examinations, and so on.

This means, in other words, that Eitanit had a certain extent of factual foreseeability or knowledge about asbestos health risks. It should be noted, to clear any doubts, that I am not dealing here with the necessary bar to meet the burden of proof for tort, criminal or other liability. This is not the topic of discussion, nor is it the standard. We are concerned with constitutional review. The issue at hand is what the scope of harm Eitanit has been caused is, and particularly – what weight should be attributed to imposing strict liability. In this view, the indicators I have listed should not be ignored, as they demonstrate Eitanit’s foreseeability or knowledge – even some – and all to the extent relevant for the matter at hand.

As a court comes to examine whether there is constitutionality of the infringement caused by imposing financial obligations on Eitanit, I believe that even partial knowledge lessens the infringement of her property rights. Put differently, even in the absence of liability or in the existence of strict liability, the link between the liable party and the conduct still warrants scrutiny. Put differently still: had section 74 imposed liability on a different company that did not manufacture asbestos in the relevant time period, or did so but not in the Western Galilee, the concerns around section 74 would significantly multiply. And again recall that section 74 does not impose on Eitanit tort or criminal responsibility. The statute does not convict, taint, or even attribute liability to Eitanit. And the means chosen is not a fine or compensation. It is designed to remove asbestos waste from the Western Galilee. Of course, this does not mean that the legislature may impose liability arbitrarily and as it sees fit. Therefore section 74 must be tested according to the limitations clause. We believe, as explained above, that there is a link between Eitanit and the waste that justifies the strict liability standard set in the section.

To summarize, though strict liability poses difficulties, considering the circumstances as a whole, the existence of similar standards regarding removal of dangerous buried waste in many other countries, the justification of “the polluter must pay”, the element of Eitanit’s knowledge or foreseeability about the specific harms and risks, and the type of financial obligation that is not a fine or compensation but the cost of cleaning the area in order to halt the development of serious harms to the residents and the environment, it seems that the benefits outweighs the infringement of the right.

Retroactive Legislation

37.A separate issue arises as to the temporal application of the Act. Eitanit claims that this is retroactive legislation, and therefore increases the infringement of its property rights. By this logic a retroactive statute comes into effect after conduct was complete, but changes the rules of the game for the future. The State, though, believes that the statute applies actively, and thus Eitanit’s claim is mitigated. That State’s position is that retroactive legislation cannot be precluded in every scenario. Who is correct about this? The issue of temporal application is complex. Therefore, first we generally present the relevant terms. Then we analyze the issue in the context for section 74, including the extent of harm to Eitanit.

Retroactive legislation changes for the past the legal status of activity that occurred before the legislation came into effect. Retrospective legislation changes for the future the legal consequences of activity that occurred before the legislation came into effect. Prospective legislation changes for the future the legal statues of activity that will occur after the legislation comes into effect.

To illustrate the differences, consider the following hypothetical: Reuben smokes a cigarette in a public space on January 1, 2012. At the time this was not prohibited. On February 1, 2012, a statute was enacted that imposes a steep fine on smoking in public places. If the new statute applies only on whoever smokes in public places from February 2, 2012 on, this is a prospective statute. If however, the statute stipulates that it came into effect on January 1, 2012, it is a retroactive statue. It alters the legal status of Reuben’s smoking, and subjects him to a fine. However, the statute is retrospective if it stipulates that anyone who smokes between January 1, 2012 and the day the statute was enacted did not commit any offence, but is required to participate in a class offered by the Ministry of Health about the harms of second-hand smoking. The statute did not alter for the past the legal status of Reuben’s smoking – which is not an offense – but did change for the future the consequences of his action. In this case, the unique status of a retrospective statute is obvious: the statute clarifies that Reuben did not commit an offense and the consequences he must face are not a fine or penalty, which is inconsistent with retroactive legislation. Reuben would still have to bear certain consequences for his past conduct, which is inconsistent with prospective legislation. It should be noted that this distinction, between retrospective application and retroactive application, is not acceptable by all, but has been established in the jurisprudence of this Court and in several other legal systems, such as Canada (for more on these definitions, see CA 1613/19 Arviv v. The State of Israel, IsrSC 46(2), 765 (1992); Aharon Barak Interpretation in Law, vol 2 – Legislative Interpretation, 609-45 (1994); Yoram Margaliot, Discrimination in Regulating Financial Savings and its Proposed Solution, Mishpatim 31, 529, 552-56 (2001); Yaniv Rosnai, Retroactivity: More Than Just ‘A Matter of Time’!, Law and Business 9 395 (2008); Daphne Barak-Erez Administrative Law, vol 1, 351-52 (2009)).

Another categorization that may be relevant for our purposes is active legislation: a piece of legislation that changes for the future the legal consequences of a situation that already existed the day the statute came into effect. Obviously, active legislation is closely linked to retrospective legislation. The difference between the two is that active legislation applies to situations that exist in the present, whereas retrospective legislation applies to activity that has already concluded in the past. For the hypothetical above, assume that the new statute would believe the impact of smoking in public places to leave residue for two months, and impose obligations accordingly – this is active legislation. It is another way to justify obligating whoever had smoked in a public place a month prior to the statute’s effect to participate in the course, as the hypothetical goes.

In his book, Professor Barak presents another example to illustrate the difference between retrospective application and active application. The difference depends on the purposive interpretation of the relevant statute:

“Take a new statue that stipulates that anyone convicted of an offense cannot serve as a Knesset Member. Would the term ‘anyone convicted of an offense’ point to an activity or a situation? Would applying the statute on anyone who was convicted of an offense before the law came into effect constitute retrospective application?... If the statutory purpose is to set an additional sanction – beyond the criminal sanction – for anyone convicted, then it addresses the activity that led to the conviction in the past. Applying the new law to such activity constitutes retrospective application of the statute. However, if the statutory purpose is to ensure public trust in elected officials and government institutions, then it addresses the situation of ‘convicted’. Applying the new statute on a situation that existed before the statute came into effect and continues to exist in the present does not constitute its retrospective application” (Aharon Barak Interpretation in Law, vol 2 – Legislative Interpretation, 628 (1994).

38.Equipped with these tools, where does the case before us fall? Section 74 of the Act requires Eitanit to shoulder the costs of removing waste it buried in the ground or passed on to the end users. On one hand, this is not retroactive application: the section does not change the past, and does not define Eitanit’s past conduct as an offense or as conduct that creates liability in torts. On the other hand, this is not prospective application, as we are concerned with removing existing waste and not waste that will accumulate in the future. The question is therefore whether this is active or retrospective application. On one had, arguably, this is active application: the Act addressed a current situation – waste that threatens public health. This is the State’s position. Alternatively, it can be argued that this is retrospective application: the Act changes the legal consequence of the burial and giving away that Eitanit did in the past, and imposes a new sanction on Eitanit. This is, effectively, Eitanit’s position.

The dispute between the parties is not merely theoretical, and the categorization of section 74’s temporal application holds constitutional significance, because the four main categories of temporal application – prospective, retrospective, active, and retroactive – may be organized along a “spectrum of legitimacy”. This spectrum reflects how we treat a piece of legislation. The premise for the “spectrum of legitimacy” is as such: the more the statute sends its tentacles significantly toward the past – so do more concerns come up about the statute’s legitimacy. The intuition behind this has many rationales: the rules of the game must be clearer from the outset, for reasons of justice and fairness, and the legislature should not be permitted to change them retroactively. Additionally, retroactive changing of rules compromises public trust in the legislature, limits the statute’s ability to channel future behavior, and undermines stability and certainty. It should be emphasized that a statute should not automatically struck down only for its location on the spectrum. Yet the justification for a statute’s temporal application must be more persuasive (this is not so for criminal legislation, see section 3 of the Penal Law 1977; a similar state exists in Canada: Canadian Charter of Rights and Freedoms §11(g), in India: Constitution of India, §20(1), in South Africa: Constitution of South Africa, Chapter 2 – Bill of Rights, §35(3)(1), and in Norway: Kongeriket Norges Grunnlov, §97).

On one end of the “spectrum of legitimacy” we find prospective application. This is more acceptable because it has no impact on past actions or past situations. On the other end we find retroactive application. This application is the type most difficult to swallow because it pulls the rug from underneath activity that has already been concluded and changes its legal meaning. Active application is situated between retrospective application and prospective application, because it applies to situations that are rooted in the past but that continue into the present. Therefore, in some sense, it is more acceptable and reasonable than retrospective application, which entirely addresses actions that have ended in the past. Thus the relative importance of the issue before us, about the categorization of section 74 – retrospective or active?

I have given much thought to this question. It is true that the Act applies to an existing situation. We are concerned with removing waste that is already buried in the ground, or is used to cover it in order to create different types of surfaces (roads, pavement, etc.). In this sense, the law applies actively. Yet I believe that categorizing section 74 under active application misses the point. Recall that this is not a case where only several of the factual elements have occurred in the past. Here, all the factual elements have occurred in the past: the waste has already been buried or placed as surfaces. In such a case, I doubt whether active application in the traditional sense is appropriate (compare: CA 6066/97 The City of Tel Aviv-Yaffo v. Even Or, IsrSC 54(3) 749, 755 (2000)). Moreover, section 74 does not address the future at all. Consider, for comparison, the example by Professor Barak that I presented above, about the new law that would stipulate that anyone convicted of a crime would be excluded from serving as a Member of Knesset. Such a hypothetical statute is partly concerned with the past (people who have already been convicted), and partly concerned with the future (people who would be convicted in the future). However, section 74 is not future facing at all. It addresses asbestos waste that Eitanit buried in the distant and not so distant past. The section does not address, and neither does it purport to do so, the burial of asbestos waste going forward. This is the concern of other sections of the Act, but not section 74. It is possible, then, that we are faced with a new category – narrow active application. Going back to the “spectrum of legitimacy”, I believe section 74 and the category of narrow active application are closer to the legitimacy position of retrospective application than to that of active application. Either way, the probability that section 74 is not an obviously retroactive statute, weakens Eitanit’s claim regarding the extent of the infringement of its property rights.

Still, without deciding the theoretical question of the Act’s categorization, we must keep in mind that even were this a strictly retroactive statute – and that is certainly not the case here – it should not mean that statute must be automatically struck down. We would still need to examine the entirety of arguments, factors, and considerations regarding the statute, in light of the limitations clause, including the statutory purpose, its benefits and its infringements of protected rights (compare: HCJ 1149/95, Arko Electric Industries Ltd. v. The Mayor of the City of Rishon L’Tzion, IsrSC 54(5) 547, para 10 of Justice Strasberg-Cohen’s opinion (2000); HCJ 4562/92, Sandberg v. The Broadcast Authority, IsrSC 50(2) 793, para 33 (1996)). In other words, the analysis I have conducted so far regarding temporal application is yet another consideration in the cost-benefit analysis. Indeed, another consideration but not a decisive one.

In my view, balancing benefit against the infringement of rights, there are three considerations that support the former and tip the scale against the harm caused by the statute’s retroactive application. Again, I do not believe this is per se retroactive application, but for purposes of convenience and brevity I will so term it. Of course this is not merely a matter of convenience: section 74 and its unique formulation, reeks of retroactivity, even if it should not be categorized as such.

As for the first consideration, my position above regarding the element of foreseeability characterizes Eitanit’s conduct to a certain extent. This has implications not just for issue of strict liability, but also for that of retroactivity. United States courts, as explained, interpreted CERCLA as having retroactive application, even though this is not explicit in its language, and though American law has a rebuttable presumption against retroactive application. One reason for this interpretation was linked to the foreseeability element: “While the generator defendants profited from inexpensive wasted disposal method that may have been technically ‘legal’ prior to CERCLA’s enactment… it was certainly foreseeable at the time that improper disposal could cause enormous damage to the environment.” (U.S. v. Monsanto Co., 858 F. 2d 160, 174 (4th Cir. 1988))

Put differently, while it is true that waste removal activity was formalistically permitted at the time, it was still possible even then to expect that such activity would cause grave harm to the health of residents and to the environment. In other words, foreseeability or awareness of the harm is some justification for imposing “retroactive” liability. We see a similar line of thinking in Holland, as I explained above. The Dutch Supreme Court ruled that a law from 1982 applies retroactively from January 1, 1975 onward. This date was chosen because starting then every polluter should have been aware that it was likely to be liable for polluting. Therefore, foreseeability or expectation of harm – not in the criminal or civil sense, but for the purposes of constitutional review – may justify retroactive application.

This is coupled with a second consideration: the extreme harm to the public. This risk is not reduced over time, and it must be addressed. Doing so increases the social benefit that comes out of section 74, even if it holds quasi-retroactive elements. Ignoring the risk caused by asbestos amounts to exposing citizens to a ticking time bomb. No wonder the legislature seeks solutions. Removing asbestos waste is an urgent priority. Failing to do so is not an option – “You shall not overlook” (Leviticus 22, 3). Regardless, the responsibility for an asbestos hazard already created will be quasi-retroactive. Therefore the question is not whether to impose retroactive liability, but whom to impose it upon (including the option of distributing costs between different parties). Of the options to impose financial obligations on the polluting corporation and imposing it on the public, fairness requires that we opt for the former. Indeed, the Israeli legislature’s solution, regulated through section 74, is designed so that at most only half of the expenses are placed on Eitanit.

Regarding the third consideration, we turn again to comparative law. Many countries – though not all of them – have recognized retroactive application. This position, as explained above, is primarily justified by fairness and necessity.

I am not ignorant to the fact that in terms of section 74 there is some link, perhaps even intermingling, of the concerns about retroactivity with the concerns about strict liability. This is understandable. As far as the infringement of Eitanit’s property right, retroactivity and strict liability walk hand in hand. The two, together and separately, raise concerns about imposing financial burdens on Eitanit for actions that were not impermissible when taken, and were not even found to constitute a breach of any duty of care. Ultimately, we must look into the details of section 74. This examination reveals that, on one hand, there is no finding of fault, but on the other hand, there are policy reasons, as mentioned, that warrant the conclusion that the infringement is outweighed by the benefits.

39.For the purposes of the third sub-test, the narrow proportionality test, three of Eitanit’s arguments were emphasized for the difficulties they create: personal legislation, strict liability, and retroactive application. Having analyzed each of these arguments independently, it appears the extent of the harm is not as great as initially thought. The additional conclusion is that Eitanit failed to demonstrate that the infringement upon its property rights surpasses section 74’s extensive benefit to the public.

Remarks Before Summarizing

40.Before I finish applying the limitations clause to this case, I should emphasize two important points. These were weaved throughout the constitutional analysis, but it would be appropriate to bring them to the fore of the discussion in order to acknowledge their significance.

The first point is the comparative law one. We are concerned with a legal area completely new to Israeli law. The issues raised here, were raised in similar dress in many other countries. Asbestos, as a member in the group of dangerous and polluting materials, is a problem that crosses borders. When a court subjects a case like this to constitutional review, I believe there is significance to the fact that many countries have walked a similar path to that of section 74. Caution is warranted when looking abroad as the Israeli system is independent. 65 years from the country’s founding, Israeli law can be seen as a dynamic creation with a life of its own. Israeli law defines the question, and supplies the answer. However, beyond the fact that this is an issue common to Israel and to other countries, I have not seen the matter to be unique – certainly not clearly or obviously – to Israel and distinct from that in other countries around the world. This is not to say that the State has absolved itself by demonstrating that the statue legislated here is consistent with international consensus. But by the same token, it cannot be said that comparative law is an irrelevant consideration, particularly when it reveals that other countries’ constitutional jurisprudence regarding similar statutes enriches our constitutional discussion. The project of comparison supports the state’s argument that section 74 is constitutional. This is a factor that should be taken into account here (and see CA 1326/07 Hammer v. Amit, para. 34 of Deputy President Rivlin’s opinion (May 28, 2012), re wrongful birth). However, this is certainly no substitution for independent constitutional review under section 8 of Basic Law: Human Dignity and Liberty.

Substantively, the above review of the legal state in Western countries reveals one clear point: that a standard of strict liability is common and acceptable in the context of removing dangerous and polluting materials. Thus in the United States, where the courts found the legislative intent behind CERCLA was to establish a strict liability standard. The European Union’s Directive, the ELD, recommends imposing strict liability on harm caused by dangerous activities listed in the third annexure. This type of liability was de facto imposed in Sweden, France, Holland, Germany (to some extent), Finland and the United Kingdom. This is also the case in many other countries that are not members of the European Union, such as Switzerland, Canada and South Africa. Retroactivity is less common, compared to strict liability, but it exists, too. In the United States CERCLA’s retroactivity passed judicial review. So did the statutes of British Columbia. Some European states adopted retroactivity as well, including Spain, the United Kingdom, and Holland (to some extent).

We have seen the commonalities. We have noted that they are material. To the relevance of this, I move onto the second point. We are concerned with constitutional review, rather than administrative. The test is not reasonableness, but the limitations clause in section 8 of Basic Law: Human Dignity and Liberty. The range of possibilities is broader, though in order to remain within this range a statute must meet the specific conditions the legislature set in the limitations clause. A court is aware of its own limits, but also of its responsibility. As noted, there is no single legislative fix for a legal problem. But in our case, it was possible to reach a statutory framework that would have passed constitutional review. Section 8 is the key. In our case, my opinion is that the State is correct that the legislature overcame all the obstacles.

Summary

41.The petition before us focused on the constitutionality of section 74 of the Asbestos Act, and of the project it launched to remove asbestos waste from the Western Galilee.

First, we must locate the rights infringed. My conclusion is that section 74, with which we are concerned, infringes Eitanit’s property rights. Indeed, the State conceded this right is infringed. Still, I do not believe that section 74 discriminates against Eitanit compared with other entities: the legislature did not obligate Eitanit to pay for final asbestos-cement products that were discarded by the end users, nor for asbestos waste that originated from other factories’ manufacturing processes. The “waste population” that is, the waste to which section 74 applies, includes only the industrial waste that came from the production processes in Eitanit’s factory.

In this context, I explained why Eitanit’s participation in removing the waste that was used for covering surfaces is justified over that of the end users. I believe there is a significant and relevant difference between Eitanit and the end users, which is based on three tests: the awareness test – Eitanit had an obvious advantage in knowledge compared to the end users. For decades Eitanit was Israel’s primary importer, manufacturer and marketer of asbestos. By virtue of this position Eitanit was familiar with the scientific research on asbestos risks and was also subject to the different statutory obligations that reflected these health risks. Under the control test, Eitanit is the manufacturer while the end users were the consumers or customers. As a manufacturer, Eitanit controlled the production of waste and its distribution, and in any event there is much logic in placing the financial burden on it. Under the profit test, there is clear justification for requiring the corporation that produces asbestos, and which more than any other entity had profited from the activity that caused the polluting hazard, to shoulder the costs of removal. All these reasons hold even more force in terms of the distinction between Eitanit and the local authorities, which do not even constitute “end users.”

Once I have concluded that Eitanit’s right to property was infringed, the issue became whether the infringement could pass muster under the limitations clause of section 8 of Basic Law: Human Dignity and Liberty. The comparative law in the background of this analysis was reviewed at length, among others because this is a novel legal issue that carries clear universal aspects and because no unique characteristics were presented for the Israeli context. Another point that should be emphasized is that we are charged with constitutional review, not administrative review. This influences the breadth of the Knesset’s discretion.

I first clarified that the infringement was made through primary legislation, that is, a statute that the Knesset passed appropriately and legally. Eitanit’s argument that this is not a “statute” for the purposes of the limitations clause because it is a personal statute is incorrect. It is a formal test that inquires mainly whether the infringement upon basic rights was made in primary legislation or according to such legislation. In this case, the answer is in the affirmative.

In the next step we explore the purpose of section 74. The sections’ primary purpose is to launch a project for the removal of asbestos from the Western Galilee. This is encompassed in the statute’s broader purpose: minimizing asbestos hazards in Israel. There is no doubt that this is an important and worthy purpose, befitting the values of the State of Israel. Indeed, it appears even Eitanit does not dispute this. I tend to think that this is the sole purpose of the statute. However, the State articulates another purpose: realizing the principle of “the polluter must pay.” I, myself, believe that this principle justifies the funding mechanism selected in the Act, rather than its purpose. Yet for the sake of a comprehensive analysis I assumed that “the polluter must pay” was a secondary purpose of the Act. Here, too, I find this to be an appropriate and befitting purpose: “the polluter must pay” principle relies on important and worthy rationales – efficiency considerations, cost internalization, justice and fairness – and it is even reflected in Jewish law and an array of recent pieces of legislation in Israel.

Is the means selected in section 74 proportional? I first examined the issue of the rational connection, in terms of each of the two purposes. As for the primary purpose, the link between the means and the end are obvious: the project directly leads to achieving the end of cleaning asbestos waste from the Western Galilee. As for the secondary purpose – “the polluter must pay” – here, again, I find a fit between the means and the end: placing financial obligations on Eitanit, which profited from burying the waste or passing it on to the end users, achieves the end of “the polluter must pay.” Even the legislature’s choice to impose a kind of retroactive and strict liability advances the principle of “the polluter must pay,” primarily from the perspective of justice and fairness.

The next step is the least restrictive means test. Here, the main alternative that Eitanit proposed is the self-performance, that is, that Eitanit or a contractor it would hire would remove the waste independently. However this option was already discussed by Eitanit and the State for a long period of time and was ultimately rejected. Under such circumstances I was not persuaded that the self-performance alternative would achieve the purpose behind section 74 – cleaning the Western Galilee from asbestos waste. Additionally, from a positive perspective, the mechanism the legislature opted for incorporates checks and balances that limit the harm to Eitanit. Eitanit would not be required to fund more than half of the removal project’s estimated costs, and in any event no more than NIS 150m. The funding mechanism insures that this is not a fine or compensation, but rather a fund dedicated to removing the waste. The removal project is limited to a radius of 15KM around the factory, and in any case there is a mechanism for checking and monitoring the length of the project, which allows Eitanit to challenge any requirement to pay for specific waste piles.

The final step is the narrow proportionality test. In this context I emphasized three points at the heart of Eitanit’s claims. On the generality issue, it is undisputed that section 74 specifically targets Eitanit, and Eitanit alone (aside from the State and the local authorities.) Only that the focus on Eitanit is not a whim that took over the legislature, but an outcome of the reality that was created by Eitanit itself. The section was designed to address a unique situation: a large amount of waste, in a defined geographical area, created systematically by one dominant entity – Eitanit.

On the issue of strict liability, it is true that on its face this is a harsh standard that raises questions and concerns. However, three considerations alleviate these difficulties. First, there are weighty justifications for strict liability, primarily justice and fairness, deterrence and cost internalization, as well as the evidentiary challenges of a fault-based standard. Second, there is support for strict liability in many European countries, in the United States, and in other countries. Third, a certain extent of factual expectation or awareness by Eitanit regarding the risks of asbestos (of course, not in the tort or criminal sense.)

Finally, in the issue of the Act’s temporal application, my conclusion is that the Act carries a narrow active application. Though it does apply to an existing state of affairs, there is no active application in the regular sense. All the factual elements have materialized completely in the past and section 74 does not at all address the future. Regardless, even if this was a completely retroactive statute – this is not a determinative factor, but merely another consideration in the constitutional fabric. At this point I discussed three mitigating elements: first, the expectation or knowledge element regarding the risk. Second, the scope of the risk; the finding that failure to treat the asbestos waste leaves many citizens exposed to a ticking time bomb in terms of their health. We cannot leave things as they are. In weighing imposing costs on Eitanit against imposing costs on the public, Eitanit’s connection to the waste as its producer puts the thumb on the scale, or at least allows for it. And third, the support for imposing retroactive liability in the United States and in other countries (such as Spain and Britain.)

We cannot ignore the infringement on Eitanit’s rights, or that the legislature created a new regime. However, it is my view that the infringement upon Eitanit’s constitutional rights – as an outcome of section 74 – passes the tests of the limitations clause.

Final Thoughts

42.Such is the way of the law. It is challenged by an ever-changing reality that requires the legislature to find solutions for problems that in one way or another threaten society. To achieve this purpose, occasionally there is need to design statutes that rely on new perspectives on legal principles. This was also the case in the past, and we shall present several examples of this.

The common law found it difficult to find legal justification to impose upon a stranger the duty to assist another person in distress. Still, for certain circumstances where official rescue services are far removed, the law has created obligations to rescue, for example the duty to save lives at sea, imposed on ships passing by (Scaramanga v. Stamp, 5 C.P.D. 295, 304-305 (1880); The Beaver, 3 Chr. Rob. 292 (1801); Sophie Cacciaguidi-Fahy, The Law of the Sea and Human Rights, 1 Panoptica Vitoria 1, 4-5 (2007)). Another example is the possibility of filing class action suits. Given the concern that absent a primary injured party who suffered damages in substantial amounts injuring parties would continue their harmful behavior, the law has developed this new procedural tool and recognized the possibility to file suit on behalf of a large group of injured parties. The novelty is both in the legal possibility to create a group of plaintiffs, who in large part did not express any position on the matter, and in the economical consequences even for a strong defendant (see the Class Action Act, 2006). Another example is the development of corporate law, on different levels. First, the recognition of a corporation’s independent status as a separate legal entity and the elimination of stock holders’ personal liability was a legal novelty and was a significant incentive to use the legal tool of incorporation. Later in legal history the pendulum swung back, to some extent. The legislature began imposing various obligations on the organs and office holders of corporations, such as duties of care and trust, based on understanding the web of interests that dictate their actions (Irit Haviv-Segal, Corporate Law, chapter 10 (2007); P. M. Vasudev, Corporate Law and Its Efficiency: A Review of History, 50 American Journal of Legal History, 237 (2010)).

As we can see, the law has gone through an evolution. To fit the it to reality, laws were passed that on their face strayed from the legal norms that were familiar and entrenched up to that point. It seems that our case, too, as part of Israel’s new environmental legislation, joins this list. The great potential for harm that asbestos waste causes and the complexity of the issue demand a solution that does not move on the currently acceptable axis of tort liability. As a rule, finding solutions to intricate problems is not necessarily a legal compromise in the sense of giving in. This is how the law advances. Hand in hand, in the constitutional era of recognizing rights, it is the role of the Court to make sure that the legislature’s selected solution meets the constitutional standards of the limitations clause. The mere existence of a problem does not open the gate for any solution. Judicial work is subtle, but necessary. In a constitutional regime, one would hope that the legislature would exercise better care. It would be aware that Basic Laws look over its shoulder “watches through the windows, peeking through the cracks (Song of Songs 2, 9.) It would strive to withstand constitutional review. This hope does not always materialize. In our case, section 74 includes elements that reflect the legislature’s attempt to meet constitutional standards. This attempt has been successful.

43.Ultimately, I would propose to my colleagues to reject the petition, and under the circumstances and the merits to require Eitanit to pay costs and attorneys’ fees as follows: for respondents 1, 3 and 4 together a sum of NIC 100,000; to respondent 5 and respondents 6-7, a sum of NIS 70,000 for the entire group; and for respondent 2 a sum of NIS 25,000.

 

___________________

Justice

 

 

 

President A. Grunis

I concur.

 

 

___________________

President

 

 

 

 

 

Justice T. Zylbertal

I concur.

 

 

___________________

Justice

 

 

Decided according to the judgment of Justice N. Hendel.

 

Handed down today, April 2, 2013.

 

 

 

 

 

 

Shemesh v. Focaccetta Ltd

Case/docket number: 
LCA 9615/05
Date Decided: 
Wednesday, July 5, 2006
Decision Type: 
Appellate
Abstract: 

Facts: The applicant, who was pregnant, and her children went to dine at the respondent’s restaurant. While dining, another customer of the respondent began to smoke. The applicant complained to the respondent but the customer continued smoking.

 

The applicant filed a claim in the Small Claims Court on the grounds that the smoking in the restaurant was illegal and caused her damage. The trial court held that the respondent had breached the law, but it only awarded the applicant compensation for the cost of the meal (NIS 112) plus expenses. The applicant applied for leave to appeal to the District Court, but the District Court held that the amount awarded fell within the broad margin of reasonableness. The applicant then applied to the Supreme Court for leave to file a further appeal.

 

Held: Justice Rubinstein, sitting as a single Justice, recognized the importance of enforcing the Restriction of Smoking in Public Places Law, 5744-1983, by means of civil actions, especially in view of the ineffectiveness of enforcement of the law by the authorities. A breach of the law constitutes a breach of the statutory duty in the Restriction of Smoking in Public Places Law, which was intended to protect the health of persons in public places. Jewish law has also increasingly recognized the dangers caused to the public by smoking in public places.

 

The Restriction of Smoking in Public Places Law does not contain a provision for awarding compensation without proving damage. But it is very difficult, because of the nature of the case, to prove specific damage from an incident of smoking. In view of the fact that the breach of the statutory duty in this case involved a family with children and a pregnant woman, there are grounds for giving stronger emphasis to the damage, for the purpose of deterrence. The Supreme Court therefore awarded the applicant an additional NIS 1,000 in compensation.

Voting Justices: 
Full text of the opinion: 

LCA 9615/05

Irit Shemesh

v.

Focaccetta Ltd

 

 

The Supreme Court sitting as the Court of Civil Appeals

[5 July 2006]

Before Justice E. Rubinstein

 

Appeal by leave of the judgment of the Jerusalem District Court (Justice B. Okon) on 14 September 2005 in LCA 844/05.

 

Facts: The applicant, who was pregnant, and her children went to dine at the respondent’s restaurant. While dining, another customer of the respondent began to smoke. The applicant complained to the respondent but the customer continued smoking.

The applicant filed a claim in the Small Claims Court on the grounds that the smoking in the restaurant was illegal and caused her damage. The trial court held that the respondent had breached the law, but it only awarded the applicant compensation for the cost of the meal (NIS 112) plus expenses. The applicant applied for leave to appeal to the District Court, but the District Court held that the amount awarded fell within the broad margin of reasonableness. The applicant then applied to the Supreme Court for leave to file a further appeal.

 

Held: The court recognized the importance of enforcing the Restriction of Smoking in Public Places Law, 5744-1983, by means of civil actions, especially in view of the ineffectiveness of enforcement of the law by the authorities. A breach of the law constitutes a breach of the statutory duty in the Restriction of Smoking in Public Places Law, which was intended to protect the health of persons in public places. Jewish law has also increasingly recognized the dangers caused to the public by smoking in public places.

The Restriction of Smoking in Public Places Law does not contain a provision for awarding compensation without proving damage. But it is very difficult, because of the nature of the case, to prove specific damage from an incident of smoking. In view of the fact that the breach of the statutory duty in this case involved a family with children and a pregnant woman, there are grounds for giving stronger emphasis to the damage, for the purpose of deterrence. The Supreme Court therefore awarded the applicant an additional NIS 1,000 in compensation.

 

Appeal allowed.

 

Legislation cited:

Copyrights Ordinance, s. 3A.

Courts Law [Consolidated Version], 5744-1984, s. 64.

Duty of Reporting Health Hazards Caused by the Smoking of Tobacco Products Law, 5761-2000.

Equal Employment Opportunities Law, 5748-1988, s. 10(a)(1).

Prohibition of Defamation Law, 5725-1965, s. 7A.

Prohibition of Discrimination in Products and Services and in Entry to Public Places Law, 5761-2000, s. 5(b).

Restriction of Smoking in Public Places Law, 5744-1983, s. 1(a), schedule: s. 11.

Restriction of Smoking in Public Places (Affixing Signs) Regulations, 5744-1984.

Torts Ordinance [New Version], ss. 63, 63(a), 63(b).

 

Israeli Supreme Court cases cited:

[1]        LCA 8144/04 Budker v. Bashkirov (not yet reported).

[2]        LCA 3006/05 Prifer Tiv’i Ltd v. Reuveni (not yet reported).

[3]        HCJ 1809/90 Society for the Advancement of Health v. Minister of Health (unreported).

[4]        HCJ 3270/91 Society for the Advancement of Health v. Mayor of Tel-Aviv (unreported).

[5]        HCJ 7013/97 Mishali v. HaEmek (unreported).

[6]        HCJ 3367/94 Ginat v. Haifa University (unreported).

[7]        LCrimA 2788/00 Nameir v. State of Israel [2000] IsrSC 54(3) 385.

 

Israeli District Court cases cited:

[8]        OM (Jer) 386/98 Elner v. Hebrew University (unreported).

 

Jewish law sources cited:

[9]        Babylonian Talmud, Tractate Sanhedrin, 8a.

[10]     Rabbi Yisrael Meir HaCohen, Likutei Amarim 13.

[11]     Rabbi Yisrael Meir HaCohen, Zechor LeMiriam 23.

[12]     Deuteronomy 4, 15.

[13]     Rabbi Moshe Feinstein, Igrot Moshe, Yoreh Deah 2, 49.

[14]     Rabbi Moshe Feinstein, Igrot Moshe, Hoshen Mishpat 2, 18.

[15]     Rabbi Moshe Feinstein, ‘The Smoking of Cigarettes in the Study-Hall,’ 5 Asia 248-251.

[16]     Rabbi Eliezer Waldenberg, Tzitz Eliezer 15, 39; 17, 21-22

[17]     Rabbi Ovadia Yosef, Yehaveh Daat 5, 39.

[18]     Rabbi Avraham Sheinfeld, Damages (in the Hok LeYisrael series, N. Rakover ed.).

[19]     Rabbi Mordechai Halperin, ‘Smoking — a Jewish Law Review,’ 5 Asia 238-247 (1986).

 

For the appellant — A. Hausner.

For the respondent —         E. Vazana.

 

 

JUDGMENT

 

 

Justice E. Rubinstein

1.    This application concerns the Restriction of Smoking in Public Places Law, 5744-1983 (hereafter — ‘the Restriction of Smoking Law’ or ‘the law’) and the compensation that should be awarded for a breach of its provisions.

2.    On 11 February 2005, the applicant (who was pregnant) and members of her family dined at the restaurant owned by the respondent. After she made her order, other customers appeared in the restaurant and began to smoke. A waitress also smoked. The applicant called the waitresses and asked for the smoking to be stopped. This was not entirely successful. The applicant argued in the Small Claims Court that the smoking was contrary to the law, that there were neither proper signs nor any proper separation in the restaurant, and that she, her children and the embryo in her womb suffered damage. In reply, counsel for the defendant argued that the restaurant has two levels and the upper level is designated for non-smokers, but the plaintiff refused to dine on the upper level.

The Small Claims Court (per Justice Lechovitsky) held that the defendant did indeed breach the provisions of the law, because there were no signs concerning smoking or any separation between the levels, and also because the area of the upper level did not satisfy the requirements in the law. With regard to the damage, the court awarded the plaintiff the amount of the meal (NIS 112), together with linkage differentials and interest, the amount of the court fee and expenses in a sum of NIS 150.

3.    The applicant applied for leave to appeal in the District Court, on the grounds that the compensation was too little, the attitude of the respondent toward her was deprecating, and the subject-matter of the claim was irreparable harm to health. The District Court (Justice Okon) held that claims of this kind should be treated seriously, that it was difficult to say that the compensation was satisfactory and that there were grounds to award a higher sum. However, this determination in itself was insufficient to permit an appeal, since the amount awarded did not fall outside the broad margin of reasonableness.

4.    (a) In the present application, it is argued that there is a need for a guideline from the court in view of the multitude of breaches of the law, which has become a ‘national plague.’ In view of this, and in view of Israel’s commitment to the World Health Organization Framework Convention on Tobacco Control, there is a basis for granting leave to appeal. There is a question with regard to the amount of compensation when it is not possible to indicate specific damage but ‘tortious’ compensation is sought.

(b) The respondent argues that there is no basis for considering the matter a third time, that the applicant’s claims go beyond what was argued in the lower courts, that there is no basis for ‘penal’ damages and that, unlike certain laws, the Restriction of Smoking Law does not contain any provision concerning compensation without proving damage. According to the respondent, the applicant should file an administrative petition against the authorities responsible for enforcing the law.

5.    (a) I have decided to grant leave to appeal, to consider the application as if an appeal were filed pursuant to the leave granted, and to allow the appeal.

(b) Indeed, in so far as small claims are concerned, the legislature provided a special procedural framework. On the one hand, it sought to allow a quick and inexpensive proceeding for trying these claims. But on the other hand it determined restrictions, such as short times frames and the need to obtain leave to file an appeal. The purpose of these restrictions is, inter alia, to prevent the courts, which are already overburdened, from being inundated with proceedings for small amounts of money, and even according to the view of the Talmudic sage Resh Lakish that ‘one should regard a case of a penny as a case of ten thousand’ (Babylonian Talmud, Sanhedrin 8a [9]), meaning that one should regard small and large claims as of equal importance, one should not always apply the law to its strict conclusion. With regard to the question of appeals, leave is required even for a first appeal to the District Court (s. 64 of the Courts Law [Consolidated Version], 5744-1984); leave is required a fortiori in order to appeal for a third proceeding in this court, and in such circumstances leave is granted sparingly (see LCA 8144/04 Budker v. Bashkirov [1] and the references cited there, and LCA 3006/05 Prifer Tiv’i Ltd v. Reuveni [2]).

(c) In our case, the reason for allowing the appeal is the importance of implementing the Restriction of Smoking Law in civil contexts. The Small Claims Court held that the respondent breached the law, and it was not prepared to accept the respondent’s arguments concerning the separation of its premises into a smoking area and a non-smoking area. The court rightly observed, and this was also accepted by the District Court, that s. 1(a) of the Restriction of Smoking Law prohibits smoking in a restaurant (which is defined in s. 11 of the schedule as a public place), and it imposes liability on the person in possession of the restaurant to display signs that indicate that smoking is prohibited. In order to permit smoking, there is a need for an arrangement that provides a separation, and the smoking area cannot exceed one quarter of the restaurant. These conditions were not satisfied, as can be seen from the record of the Small Claims Court. It is not superfluous to mention that the Restriction of Smoking in Public Places (Affixing Signs) Regulations, 5744-1984, provide that, in restaurants, signs concerning the restriction of smoking should be installed in every room apart from the smoking room, with a minimum amount of one sign for each ten metres of wall length or one sign, whichever is the greater. It should also be stated that Israel has ratified the World Health Organization Framework Convention on Tobacco Control. Article 8(1) of this provides that ‘scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability’; therefore, each member country is required to adopt legislative and administrative measures providing for protection from exposure to tobacco smoke, inter alia in indoor public places. Counsel for the applicant argued that past petitions to implement the law (HCJ 1809/90 Society for the Advancement of Health v. Minister of Health [3] and subsequently HCJ 3270/91 Society for the Advancement of Health v. Mayor of Tel-Aviv [4]) were denied, even though the court called for the implementation of the law. See also HCJ 7013/97 Mishali v. HaEmek [5]. There were also several students’ petitions with regard to this law (HCJ 3367/94 Ginat v. Haifa University [6], OM (Jer) 386/98 Elner v. Hebrew University [8]. In the last-mentioned case, Justice Procaccia extensively surveyed the law and the need to implement it. I will mention that the explanatory notes to the draft law (the draft Prohibition of Smoking in Public Places Law, 5743-1983 (Draft Laws 5743, at p. 195), begin by observing: ‘Smoking in public places harms and upsets the non-smoking public present there.’ It should be noted that pursuant to the Duty of Reporting Health Hazards Caused by the Smoking of Tobacco Products Law, 5761-2000, a report about smoking in Israel for the years 2004-2005 that was submitted to the Knesset in July 2005 revealed that only three administrative fines were given for smoking in restaurants in Jerusalem in 2005.

(d) Indeed, the authorities should carry out their duties of supervision and enforcement that were imposed on them by the legislature. But the sluggishness and slowness of the authorities’ action justifies opening a door for ‘civil enforcement,’ so that the caring citizen who wishes to protect his health and the health of the public can also have an effect for the benefit of the public. An action for breach of a statutory duty under s. 63 of the Torts Ordinance [New Version] is also a way of doing this, since we are dealing with harm to human beings that is cumulative. It is not superfluous to mention that section 63(b) of the Torts Ordinance provides that —

‘Breach of statutory duty

63. …

     (b) With regard to this section, legislation is regarded as having been made for the benefit or protection of a person, if according to its proper interpretation it is for the benefit or protection of that person or for the benefit or protection of persons in general or of persons of the kind or class that includes that person.’

For our purposes, there is no doubt that this is true of the Restriction of Smoking Law; see also M. Cheshin in The Laws of Tort, the General Theory of Tort (G. Tedeschi, I. Englard, A. Barak, M. Cheshin eds., 1977), at p. 106.

(e) When the danger of smoking first became clear, Torah scholars and Jewish law authorities of the previous generation addressed the issue by gradually expressing greater and greater reservations with regard to smoking and pointing out the harm that it causes. It should be noted that in the past smoking in yeshivot (rabbinical academies) was almost a matter of course for many people, so that to come and turn the tide was no small step. But already long ago, at the beginning of the twentieth century, even before the categorical medical opinions of our generation, the author of Hafetz Hayim (Rabbi Yisrael Meir HaCohen, Russia – Poland, the nineteenth-twentieth centuries) came out against smoking, and noticed already that ‘several doctors have said that anyone who is weak should not acquire this habit since it depletes his strength, and sometimes even costs him his life…’ (Likutei Amarim 13 [10]; Zechor LeMiriam 23 [11]); he based his remarks also on the Biblical verse (Deuteronomy 4, 15 [12]): ‘And you shall take great care of yourselves.’ Rabbi Moshe Feinstein (Russia – the United States, the twentieth century) in his responsa Igrot Moshe (Yoreh Deah 2, 49 [13]) was aware of the fact ‘that several great Torah scholars of past generations and in our generation smoke’ and although he did not prohibit smoking, he points out that ‘since there is a concern that one may become ill from it, one ought to be wary of it.’ In another place in his responsa (Hoshen Mishpat 2, 18 [14]) he said that ‘it is well known that it is something that harms many people,’ and also (ibid.) with regard to cigarettes ‘that those people who cannot bear it really suffer; this is not merely that they are particular or delicate, nor does it merely distress them but it also really causes them harm’; see also the letter of Rabbi Feinstein concerning ‘The Smoking of Cigarettes in the Study-Hall,’ 5 Asia 248-251 [15]. Thus we see that smoking has ultimately become regarded as harmful. The issue was discussed more extensively by Rabbi Eliezer Waldenberg (Jerusalem, in our generation) in his responsa Tzitz Eliezer, where he describes (15, 39 [16]) his conviction ‘that the smoking of cigarettes is like coals that burn the body, because it causes very serious harm to the health of the smoker’s body…’. Rabbi Waldenberg adds to the remarks of Rabbi Yisrael Meir HaCohen and says that today when the harm of smoking has become clear —

‘… in the full severity of its poison, and the huge number of people killed by it and its many victims are clearly seen, this applies therefore to everybody, even if they do not appear weak… and therefore a person should note that he should distance himself at all costs from smoking and the fumes from it…’.

Rabbi Waldenberg concludes (ibid, 9 [16]):

‘In summary, this ruling can be seen from our remarks to be the law, for there is a good basis to prohibit smoking under Torah law, and also when people smoke in public places, any person who is afraid that his health may be harmed has a good case to protest against the smokers that they should not smoke.’

See also Tzitz Eliezer 17, 21 [16], and also ibid., 22, ‘that smoking causes [harm] both to the smoker and to anyone near the smoker who becomes a passive smoker and who can be harmed to a certain degree like the smoker himself,’ and the author encourages protests against smokers, since the prohibition applies ‘only when there is a protest from the public, or even from the individual.’ In our case it can also be said that the legislature constitutes a ‘public protest,’ and the applicant comes and adds to it an individual protest. See also the remarks of Rabbi Ovadia Yosef in his responsa Yehaveh Daat 5, 39 [17], at p. 180:

‘But how good and pleasant it is to refrain from smoking cigarettes in general all year round, since it has become widely publicized that, according to the opinion of medical and scientific experts in our times, smoking is harmful and very dangerous, and it may lead to terrible illnesses and endanger a person’s health. Whoever takes care of himself will keep away from them. And the Torah has already warned: “And you shall take great care of yourselves”.’

Admittedly Rabbi Yosef, like Rabbi Feinstein, also did not prohibit smoking, but he did express its harm. See also Rabbi A. Sheinfeld, Damages (in the Hok LeYisrael series edited by N. Rakover), at p. 246 [18]; Rabbi M. Halperin, ‘Smoking — a Jewish Law Review,’ 5 Asia 238-247 [19] (see the discussion of damage to others and the references; see also note 53 with regard to the development that took place in Rabbi Feinstein’s thinking); Dr E. Meltzer, ‘The Effect of Smoking on the Cardiovascular System, the Blood Vessels and the Pulmonary System,’ ibid., at pp. 222-223; Dr B. Herskovitz and Prof. R. Katan, ‘Smoking and Cancer — Medical Background,’ ibid., at pp. 234-237; Prof. M. Adler and Prof. Y. Shenfeld, ‘The Harms of Smoking,’ ibid., 47-48, 90-100 (the authors also discuss the damage from passive smoking). See also the references in the index of the periodicals of the Bar-Ilan University Responsa Project. All of these references speak for themselves, and they are consistent with the approach of the Israeli legislature, which also did not prohibit smoking but placed restrictions on it for the public benefit in the Restriction of Smoking Law.

(6) On the one hand, I do not think there is a place for ‘sweeping’ guidelines of this court with regard to the amount of compensation that should be awarded for a breach of the Restriction of Smoking Law. Counsel for the respondent rightly pointed out that in laws where the legislature wanted to provide compensation without proving damage, it did so expressly (s. 7A of the Prohibition of Defamation Law, 5725-1965, s. 10(a)(1) of the Equal Employment Opportunities Law, 5748-1988, and s. 5(b) of the Prohibition of Discrimination in Products and Services and in Entry to Public Places Law, 5761-2000 — in all of which the amount was fixed at NIS 50,000 — and in s. 3A of the Copyrights Ordinance, where the amount ranges from NIS 10,000 to NIS 20,000). There is no similar provision in the law under discussion. On the other hand, because of the nature of the case, in the prevailing circumstances it will be very difficult to prove specific damage from smoking, which tends to be caused over many years. The damage caused — as required by s. 63(a) of the Torts Ordinance — can only be estimated by the ‘cumulative likelihood’ method. It is clear that the applicant and her counsel are bringing an action that has more of a public character than a personal one. I have also considered the criteria relevant to compensation which were mentioned by learned counsel for the applicant, such as the efforts of the person in charge of a public place to prevent the damage, the degree of profit derived, the seriousness of the breach, etc.. Even though, as stated, I believe that the issue is one that falls mainly in the sphere of the legislature, it seems to me that when a statutory duty is breached, and when we are speaking of a family with children and a pregnant woman, there are grounds for giving stronger emphasis — even if only of a symbolic nature — to the damage, in order to deter the public. This also follows the spirit of the remarks of the learned judge in the District Court, that there was a basis for awarding a higher amount, as well as the spirit of the remarks of Vice-President S. Levin in LCrimA 2788/00 Nameir v. State of Israel [7], in a different context, that we are not dealing with an insignificant matter, but with a matter where ‘the legislature wanted to provide a normative expression to cultural norms’ — in our case in the field of health, within the scope of the culture of providing services.

(7) The appeal is therefore allowed. The respondent shall pay the applicant NIS 1,000 in addition to what was awarded in the trial court, and also the costs of the proceedings in this court together with legal fees in a sum of NIS 1,000.

 

 

Appeal allowed.

9 Tammuz 5766.

5 July 2006.

 

 

Daaka v. Carmel Hospital

Case/docket number: 
CA 2781/93
Date Decided: 
Sunday, August 29, 1999
Decision Type: 
Appellate
Abstract: 

Facts: Appellant was admitted to the hospital for an operation on her left leg, and she signed a consent form agreeing to the operation. Two days later, after being placed on the operating table and receiving sedatives in advance of undergoing anesthesia, she was asked to sign a consent form for a biopsy operation on her right shoulder. She did so, and the biopsy was performed and did not reveal malignancy. After being released from the hospital, her shoulder remained stiff. Appellant sued the hospital for negligence, claiming negligence in failing to receive her informed consent, in the decision to conduct the biopsy, and in the treatment she subsequently received. The trial judge dismissed the claim.

 

Held: The Court granted the appeal through a plurality opinion written by Justice Or, in which President Barak, Deputy President Levin, and Justices Cheshin, Strasberg-Cohen, and Englard concurred. Justice Or held that there was no negligence in the decision to perform the biopsy, they way it was performed, or in the post-operative treatment, but that the hospital was negligent in not receiving Appellant’s informed consent to the operation. There was no causal connection, however, between failure to obtain informed consent and the damage caused by the operation, because Appellant would almost certainly have agreed to the operation, had she been informed of its nature and risks. Appellant was not entitled to recover for her bodily damage, but she was entitled to recover for the violation of autonomy in not obtaining her informed consent, which is a separate head of damage in tort claims. Justice Strasberg-Cohen wrote separately to say that determining a causal connection in a hypothetical situation – e.g. whether Appellant would have agreed to the operation had her informed consent been sought – should be done through the evaluation of chances test, in which a patient may recover proportional damage if the chance that he or she would have agreed to the operation is more than negligible, even if it is not more 50%. Because there was a 50% chance that Appellant would not have consented to the operation, Appellant should be awarded half the physical damages, in addition to compensation for violation of autonomy. Justice Beinisch dissented, holding that Appellant would not have consented to the operation and that she was therefore entitled to full recovery for the bodily injury suffered. Awarding compensation for violation of autonomy should be reserved for rare cases which do not include this one.

Voting Justices: 
Author
dissent
Primary Author
majority opinion
Author
concurrence
Author
concurrence
majority opinion
Author
concurrence
majority opinion
Full text of the opinion: 
 

CA 2781/93

Miassa Ali Daaka

v.

1. Carmel Hospital, Haifa

2. Health Fund of General Association of Workers in Israel

The Supreme Court Sitting as the Court for Civil Appeals

[August 29, 1999]

Before President A. Barak, Deputy President S. Levin, and Justices T. Or, M. Cheshin, T. Strasberg-Cohen, D. Beinisch, I. Englard

Facts: Appellant was admitted to the hospital for an operation on her left leg, and she signed a consent form agreeing to the operation. Two days later, after being placed on the operating table and receiving sedatives in advance of undergoing anesthesia, she was asked to sign a consent form for a biopsy operation on her right shoulder. She did so, and the biopsy was performed and did not reveal malignancy. After being released from the hospital, her shoulder remained stiff. Appellant sued the hospital for negligence, claiming negligence in failing to receive her informed consent, in the decision to conduct the biopsy, and in the treatment she subsequently received. The trial judge dismissed the claim.

Held: The Court granted the appeal through a plurality opinion written by Justice Or, in which President Barak, Deputy President Levin, and Justices Cheshin, Strasberg-Cohen, and Englard concurred. Justice Or held that there was no negligence in the decision to perform the biopsy, they way it was performed, or in the post-operative treatment, but that the hospital was negligent in not receiving Appellant’s informed consent to the operation. There was no causal connection, however, between failure to obtain informed consent and the damage caused by the operation, because Appellant would almost certainly have agreed to the operation, had she been informed of its nature and risks. Appellant was not entitled to recover for her bodily damage, but she was entitled to recover for the violation of autonomy in not obtaining her informed consent, which is a separate head of damage in tort claims. Justice Strasberg-Cohen wrote separately to say that determining a causal connection in a hypothetical situation – e.g. whether Appellant would have agreed to the operation had her informed consent been sought – should be done through the evaluation of chances test, in which a patient may recover proportional damage if the chance that he or she would have agreed to the operation is more than negligible, even if it is not more 50%. Because there was a 50% chance that Appellant would not have consented to the operation, Appellant should be awarded half the physical damages, in addition to compensation for violation of autonomy. Justice Beinisch dissented, holding that Appellant would not have consented to the operation and that she was therefore entitled to full recovery for the bodily injury suffered. Awarding compensation for violation of autonomy should be reserved for rare cases which do not include this one.

Israeli Supreme Court Cases Cited:

[1]        CA 3108/91 Reibe v. Veigel, IsrSC 47 (2) 441.

[2]        CA 560/84 Nachman v. Histadrut Health Fund, IsrSC 40(2) 384.

[3]        CA 4384/90 Vaturi v. Leniado Hospital, IsrSC 51 (2) 171.

[4]        CA 470/87 Alturi v. State of Israel – Ministry of Health, IsrSC 47(4) 146.

[5]        CA 58/82 Kantor v. Moseib, 39(3) 253.

[6]        CA 5049/91 Histadrut Klalit Health Fund v. Rachman, IsrSC 49 (2) 369.

[7]        CA 434/94 Berman (Minor) v. Moore Institution for Medical Information Ltd, IsrSC 51(4) 205.

[8]        CA 6643/95 Cohen v. Histadrut Klalit Health Fund, IsrSC 53 (2) 680.

[9]        FHC 7015/94 Attorney General v. Anonymous, IsrSC 50 (1) 48.

[10]     HCJ 2481/91 Dayan v. Jerusalem District Commissioner, IsrSC 48(2) 456

[11]     HCJ 693/91 Efrat v. Director of Population Registry of the Ministry of the Interior, IsrSC 47(1) 749.

[12]     HCJ 7357/95 Baraki Peta Humphries (Israel) Ltd. v. State of Israel, IsrSC 50(2) 769.

[13]     HCJ 4330/93 Ganem v. Tel-Aviv District Committee of the Bar Association Committee, IsrSC 50(4) 221.

[14]     CA 5942/92 Anonymous v. Anonymous, IsrSC 48(3) 837.

[15]     CA 1233/94 Cohen v. Attorney General (unreported).

[16]     HCJ 50161/96 Horev v. Minister of Transportation, IsrSC 51(4) 1; [1997] IsrLR 149.

[17]     CA 7155/96 Anonymous v. Attorney General, IsrSC 51(4) 160.

[18]     LCA 1412/94 Ein Kerem Medical Association v. Gilad, IsrSC 49(2) 516.

[19]     CA 4837/92 “Eliyahu” Insurance Company v. Borba, IsrSC 49(2) 257.

[20]     CA 243/83 Jerusalem Municipality v Gordon, IsrSC 39(1) 113.

[21]     CA 4500/90 Hershko v. Aurbach, IsrSC 49(1) 419.

[22]     CA 558/84 Carmeli v. State of Israel, IsrSC 41(3) 757.

[23]     CA 1730/92 Matzrava v. Matzrava (unreported).

[24]     LCrim 6795/93 Agadi v. State of Israel, IsrSC 48(1) 705.

[25]     CA 915/91 State of Israel v. Levi, IsrSC 48(3) 45.

[26]     CA 50/91 Sabin v. Minister of Health, IsrSC 47(1) 27.

[27]     CA2989/95 Korantz v. Sapir Medical Center “Meir” Hospital, IsrSC 51(4) 687.

[28]     CA 429/82 State of Israel v. Sohan, IsrSC 42(3) 733.

[29]     CA 283/89 Haifa Municipality v. Moskovitz,, IsrSC 47(2) 193.

[30]     CA 37/86 Levi v. Sherman, IsrSC 44(4) 446.

[31]     CA 2934/93 Soroka v. Hababu, IsrSC 50(1) 675.

[32]     CA 414/66 Fishbein v. Douglas Victor Paul by Eastern Insurance Service, IsrSC 21(2) 453.

[33]     CA 591/80 Chayu v. Ventura, IsrSC 38(4) 393.

[34]     CA 437/73 Aik (minor) v. Dr. Rosemarin, IsrSC 29(2) 225.

[35]     CA 145/80 Vaknin v. Beit Shemesh Local Council, IsrSC 37(1) 113.

[36]     FH 24/81 Honovitz v. Cohen, IsrSC 38(1) 413.

[37]     CA 20/80 Fleisher v. Laktush, IsrSC 36(3) 617.

[38]     CA 410/83 Petrolgas Israeli Gas Company (1969) Ltd .v. Kassero IsrSC 40(1) 505.

[39]     CA 231/84 Histadrut Health Fund v. Fatach IsrSC 42(3) 312.

[40] CA 679/82 Netanya Municipality v. Tzukim Hotel Ltd. (not published).

[41]     CA 355/80 Nathan Anisivmov Ltd v. Tirat Bat Sheva Hotel Ltd, IsrSC 35(2) 800.

Israeli District Court Cases Cited:

[42]     CC (B. Sheva) 88/84 Assa v. Histadrut Health Fund, 1987 DC 32(3).

United States Cases Cited:

[43]     Rogers v. Whitaker (1992) 67 Aust. L.J. 47.

[44]     Chappel v. Hart (1998) 72 Aust. L.J. Rep. 1344.

[45]     Salis v. United States 522 F. Supp. 989 (1981).

[46]     Kramer v. Lewisville Memorial Hosp. 858 S.W. 2d 397 (1993).

[47]     Falcon v. Memorial Hosp. 462 N.W. 2d 44 (1990).

[48]     Canterbury v. Spence 464 F. 2d 772 (1972).

[49]     Hartke v. McKelway 707 F. 2d 1544 (1983).

[50]     Sard v. Hardy 379 A. 2d 1014 (1977).

[51]     Bernard v. Char 903 P. 2d 667 (1995).

[52]     Memphis Community School Dist. v. Stachura 106 S. Ct. 2537 (1986).

[53]     Schloendorff v. Society of New York Hospital 105 N.E. 92 (1914).

[54]     Natanson v. Kline 350 P. 2d 1093 (1960).

[55]     Cobbs v. Grant 502 P. 2d 1 (1972).

English Cases Cited:

[56]     Smith v. Barking Havering & Brentwood Health Authority (1989) (Q.B. – unreported).

[57]     Lachambre v. Nair [1989] 2 W.W.R. 749.

[58]     Alexander v. Home Office [1988] 2 All E.R. 118 (C.A.).

[59]     Chatterton v. Gerson [1981] 1 All E.R. 257 (Q.B).

[60]     Bolitho v. City and Hackney Health Authority [1997] 3 W.L.R. 1151 (H.L.).

[61]     Davies v. Taylor [1972] 3 All E.R. 836 (H.L.).

[62]     Bolam v. Friern Hospital Management Committee (1957) 2 All E.R. 118 (Q.B.).

[63]     Airedale NHS Trust v. Bland [1993] 1 All E.R. 821 (H.L.).

[64]     St. George’s Healthcare NHS Trust v. S. [1998] 3 All E.R. 673 (C.A.).

[65]     Sidaway v. Governors of Bethlem Royal Hospital [1985] A.C. 871.

Scottish Cases Cited:

 [66]    Goorkani v. Tayside Health Board [1991] S.L.T. 94.

Canadian Cases Cited:

[67]     Reibl v. Hughes (1980) 114 D.L.R. (3rd) 1.

[68]     Arndt v. Smith (1995) 126 D.L.R. (4th) 705.

[69]     Arndt v. Smith (1997) 148 D.L.R (4th) 48.

[70]     Hopp v. Lepp (1980) 112 D.L.R. (3rd) 67.

[71]     Malette v. Shulman (1990) 67 D.L.R. (4th) 321.

[72]     Hollis v. Dow Corning Corp. (1995) 129 D.L.R. (4th) 609.

Israeli Books Cited:

[73]     D. Barak-Erez, Avlot Chukatiot [Constitutional Torts] (1994).

[74]     I. Englard, Yesodot Haachraut Benezikin, Dinei Nezikin – Torat Hanezikin Haclallit [Foundations of Liability in Tort] in [The General Doctrine of Torts], (G. Tedeschi, ed. 2 ed. 1977).

[75]     G. Shalev, Dinei Chozim [Contracts Law] (2nd Ed. 1995).

[76]     3 A. Barak, Parshanut Bimishpat [Interpretation in Law], Parshanut Chukatit [Constitutional Interpretation] (1994).

Israeli Articles Cited:

[77]     A. Shapira, Haskama Mudaat Letipul Refui- Hadin Hamatzui Veharatzui [Informed Consent to Medical Treatment], 14 Iyunei Mishpat (1989) 225.

[78]     R. Gavison, Esrim Shana Lehilchat Yardor – Hazechut Lehibacher ViLikachei Hahistoria [Right to be Elected], Gevurot LeShimon Agranat (Barak et al. ed 1987) 145.

[79]     Y. Gilad, Al Hanachot Avoda, Intuitzia Shiputit Veratzionaliut Bekeviat Gidrei Achrayut BeRashlanut [Borders of Negligence], 26 Mishpatim (1995-1996) 295.

[80]     A. Porat, Dinei Nezikin: Avlat Harashlanut alpi Pesikato shel Beit Hamishpat Haelyon Minekudat Mabat Theoretit [Tort of Negligence], Sefer Hashana Shel Hamishpat BeYisrael – 1997 (Rozen ed. 1997) 373.

[81]     R. Shapira, Hamechdal Hahistabruti shel Dinei Haraayot – Chelek 1 – Bikorot Mesortiot [Omission in Evidence Law], 19 Iyunei Mishpat (1995) 205.

[82]     A. Porat, Doctrinat Hanezek Haraayati: Hahatzdakot LeImutza Veyisuma Bematzavim Tipussim shel Ivadaut Begrimat Nezakim [Doctrine of Evidentiary Damage], 21 Iyunei Mishpat (1998) 191.

Foreign Books Cited:

[83]     I. Englard, The Philosophy of Tort Law (1993).

[84]     W.L. Prosser, W.P. Keeton On the Law of Torts (5th ed.,
 W.P. Keeton et al. 1984).

[85]     H. Street, M. Brazier, On Torts (9th ed., M. Brazier 1993).

[86]     D. Giesen, International Medical Malpractice Law (1988).

[87]     I. Kennedy, A. Grubb, Medical Law (2nd ed. 1994).

[88]     R. Nelson-Jones, F. Burton, Medical Negligence Case Law (2nd ed. 1995).

[89]     H. McGregor, On Damages (15th ed. 1988).

[90]     M. Jones, Medical Negligence (2nd ed. 1996).

[91]     M.J. Powers, N.H. Harris, Medical Negligence (2nd ed 1994).

[92]     H.L.A. Hart, T. Honor, Causation in the Law (2nd ed. 1985).

[93]     J. Katz, The Silent World of Doctor and Patient (1984).

Foreign Articles Cited:

[94]     M.M. Shultz, From Informed Consent to Patient Choice: A New Protected Interest, 95 Yale L.J. 219 (1985-1986).

[95]     P.H. Schuck, Rethinking Informed Consent, 103 Yale L.J. 900 (1993-1994).

[96]     A.D. Twerski, N.B. Cohen, Informed Decision Making and The Law of Torts: The Myth of Justiciable Causation, U. Ill. L. Rev. 607 (1988).

[97]     F. Carnerie, Crisis and Informed Consent: Analysis of a Law-Medicine Malocclusion, 12 Am. J. L. and Med. 55 (1986).

[98]     D. Hermann, The Basis for the Right of Committed Patients to Refuse Psychotropic Medication, 22 HOSPLW 176 (1989).

[99]     R.B. Dworkin Medical Law and Ethics in the Post-Autonomy Age, 68 Ind. L.J. 727 (1992-1993).

[100]   R. Macklin, Symposium: Law and Psychiatry Part II: Some Problem in Gaining Informed Consent From Psychiatric Patients, 31 Emory L.J. 345 (1982).

[101]   R. Crisp, Medical Negligence, Assault, Informed Consent, and Autonomy, 17 J. Law & Society 77 (1990).

[102]   M.R. Flick, The Due Process of Dying, 79 Calif. L. Rev. 1121 (1991).

[103]   W.S. Malone, Ruminations on Cause-In-Fact, 9 Stan. L. Rev. 60 (1956-1957).

[104]   A. Porat, A. Stein, Liability for Uncertainty: Making Evidential Damage Actionable, 18 Cardozo L. Rev. 1891 (1996-1997).

[105]   D. Manderson, Following Doctors’ Orders: Informed Consent in Australia, 62 Aust. L.J. 430 (1988).

[106]   M.A. Somerville, Structuring the Issues in Informed Consent, 26 McGill L.J. 740 (1980-1981).

 

[107]   J. Raz, Autonomy, Toleration, and the Harm Principle in Issues in Contemporary Legal Philosophy 313 (Gavison ed. 1987).

[108]   J. Katz, Informed ConsentMust it Remain a Fairy Tale?, 10 J. Contemp. H.L. & Pol’y 69 (1994).

[109]   C.J. Jones, Autonomy and Informed Consent in Medical Decisionmaking: Toward a New Self-Fulfilling Prophecy, 47 Washington & Lee L. Rev. 379 (1990).

[110]   J. Keown Burying Bolam: Informed Consent Down Under, 53 Cambridge L.J. 16 (1994).

[111]   D. Feldman, Secrecy, Dignity, or Autonomy? Views of Privacy as a Civil Liberty, 47 Cur. Leg. Prob. 41 (1994).

[112]   M.A. Bobinski, Autonomy and Privacy: Protecting Patients from their Physicians, 55 U. of Pitt. L. Rev. 291 (1993-1994).

[113]   N.P. Terry, Apologetic Tort Think: Autonomy and Information Torts, 38 St. Louis U. L.J. 189 (1993-1994).

Miscellaneous:

[114]   Restatement 2d, Torts.

Appeal against judgment of the Nazareth District Court (Judge G. Ginat) of January 29, 1993 in CC 425/90.

The appeal was allowed in part by the majority, in accordance with the opinion of Justice T. Or

For Appellant – Akiva ben Chaim, Elad Cohen

For Respondents – Ricardo Weiss

JUDGMENT

 

Justice D. Beinisch

This is an appeal of the judgment of the District Court of Nazareth )Judge G. Ginat) in CF 425/90 of March 29, 1993, which rejected the appellant’s claim for damages for physical harm that she sustained as a result of the biopsy performed on her shoulder in the respondents’ hospital.

The Facts

1. Appellant is disabled, born in 1959, who since birth has suffered from a deformity in the sole of her left foot. Sometime during 1987, Appellant also began suffering from pains in her right shoulder. After symptomatic treatment failed to help, x-rays were done, followed by bone mapping, resulting in a diagnosis of “diffusive absorption.”

On January 5, 1988, Appellant was hospitalized in the “Carmel” hospital – Respondent 1 – for an operation on her left leg. Two days later, on January 7, 1988, Appellant was operated upon and a biopsy was performed on her right shoulder, because of a suspicion of a growth on the shoulder and the need for a clear diagnosis as to the cause of the diffuse absorption, which had shown up in the bone mapping. The change in the operation was apparently the result of the doctor’s decision, immediately before the operation, that the finding in the shoulder necessitated an operation that was more urgent than the operation in the leg.

On the day of hospitalization, Appellant was asked to sign a form recording her consent to an operation on her leg. Two days later, when she was actually on the operating table, having already received sedatives given to patients prior to being taken from the orthopedic ward to the operating theatre, she was asked to sign a consent form for an operation on her shoulder.

The operation did not reveal anything, and after five days of hospitalization, the appellant was released from the hospital and referred for continued treatment in the hospital’s outpatient clinic.

After the operation, Appellant’s shoulder remained stiff, and the parties agree that she has a disability of 35%. Similarly, it is not disputed that if not for the biopsy, presumably the shoulder would not have become stiff, except that the respondents maintain that the injury is rooted in the appellant’s unwillingness to move her shoulder.

On November 30, 1988, Appellant underwent the operation on her leg, and as a result there was a significant improvement in the condition of the leg. At the same time, she underwent manipulation on the shoulder to improve its mobility. On December 28, 1989, Appellant underwent additional manipulation, but to no avail; the shoulder remained stiff.    

Appellant filed a claim against the respondents, demanding compensation for the physical harm to her shoulder caused by the operation. Her claim was exclusively based on the grounds of negligence. Appellant claimed that she had been totally unaware of the doctors’ intention to operate on her right shoulder, becoming aware of the fact only when coming out of the anesthetic. Appellant further claimed negligence in the medical treatment given to her, both regarding the actual decision to conduct a biopsy and regarding the treatment she received after the biopsy.

The Judgment of the Trial Court

2. The honorable Judge Ginat dismissed the claim of negligence in all its aspects.

Regarding the allegation of negligence in the execution of the biopsy, the judge ruled that even Appellant’s expert, whose opinion was the basis of the claim, did not categorically state that there was no justification for conducting a biopsy on the basis of the findings that were before the doctors. In the trial judge’s view, this was sufficient grounds for dismissing the allegation of deviation from appropriate professional standards on the part of the treating doctors in their decision to conduct the biopsy.

Regarding Appellant’s claim that she never consented to the biopsy operation, the trial judge determined that already prior to her hospitalization, Appellant had been aware of the problem with her shoulder, and that nothing in the evidence substantiated her claim that she was shocked when finding out that her shoulder and not her leg had been operated upon. He further ruled that he had no doubt that at a certain stage during the admission procedure into the hospital, there had been a hitch in the sense that the appellant initially signed a consent form for the operation on her leg, and only at the last moment, just before the biopsy was conducted, was she asked to sign another consent form which included the correct description of the anticipated treatment. In the lower court’s view, the aforementioned hitch was insufficient to substantiate the claim that Appellant had not consented to the conduct of the biopsy:

In these circumstances there is no escaping the conclusion that there was no defect in the decision to conduct the biopsy. I am also of the opinion that the plaintiff consented to the treatment after being explained that it was the appropriate medical treatment…

In these circumstances, given the appellant’s total denial of having received any information regarding the anticipated treatment for her shoulder, and given my rejection of her denial, I am unwilling to hear an alternative factual allegation from her to the effect that she had received information on the matter but that it was incomplete.

The trial judge further stated that the sole grounds for the action relied upon by Appellant was negligence, and that such claim required proof of the causal connection between the negligence and the damage. Since Appellant had not proved that her shoulder was damaged as a result of breach of the obligation to supply her with information, her claim should be dismissed, even assuming, arguendo, that the appellant had not received complete information prior to the biopsy.

Regarding the allegation of negligence in the medical treatment after the operation, the trial judge ruled that there was no foundation for the appellant’s claim that different physiotherapeutic treatment would have prevented the damage to her shoulder. The trial judge did not totally endorse the doctors’ claim that conceivably a greater degree of effort on the appellant’s part would have prevented the damage to her shoulder. Nonetheless, he ruled that absent any claim regarding a defect in the execution of the biopsy, and having dismissed the claim regarding the nature of the physiotherapeutic treatment given to the appellant, it was not possible to establish negligence in the medical treatment, and such negligence could not be inferred from the actual occurrence of the damage itself.

3. In her appeal, Appellant claimed that even if the tort of battery was explicitly claimed in the complaint, the lower court was nonetheless mistaken in its failure to address it, given that the factual components of the tort of battery were fully described in the complaint.

On the merits of the issue, counsel for the appellant contended that the lower court erred in its rejection of Appellant’s claim that she had not consented to the operation. He argued that even if prior to the operation, the appellant had suffered from certain medical problems in her shoulder, this fact by itself did not contradict her claim that she was shocked upon finding out that her shoulder had been operated upon.

In summations, Appellant further claimed that respondents’ doctors had been negligent in their actual decision to perform the operation, which was allegedly performed without justification, and that they were negligent in the post surgical treatment. It was further claimed that respondents bear the burden of proving the absence of negligence, under the rule that “the thing speaks for itself” and that the court erred in its failure to apply that rule to the circumstances of the case.

During oral arguments in the appeal, Appellant focused on the question of the absence of consent to the operation on the shoulder. He claimed that in this case, the elements of the tort of battery had been proven, and that the respondents were therefore liable for damage caused to the appellant by the operation, even in the absence of proof of a causal connection regarding the full extent of damage sustained by Appellant. CA 3108/91 Reibl v. Veigel (hereinafter: “Reibl”) [1] (Shamgar, P). He further added that the case law trend to recognize medical treatment given without consent as constituting the tort of battery had been reinforced following the enactment of the Rights of the Patient Law, 1996 (hereinafter: Patient’s Rights Law).

Respondents countered by claiming that the appeal addresses issues of fact, not law, in which this court does not generally intervene.

Respondents further asked the Court to reject the claim regarding transferring the burden of proof, arguing that, in any event, they had satisfied this burden by proving that they had not been negligent in the treatment they gave to Appellant, both in the operation itself and the post surgical treatment.

4. We are satisfied that no negligence was proven on the respondents’ part regarding the decision to perform the operation on Appellant’s shoulder, nor in the treatment given to Appellant in order to overcome the invalidity caused by the operation, including both the physiotherapy and the additional operations. In this context, there are no grounds for interference with the findings and conclusions of the trial court, grounded in the testimony of the doctors, which it preferred over the medical expert opinion submitted by the appellant.           

Nevertheless, the court’s conclusion and dismissal of the claim caused us considerable consternation, to the extent that it was based on the absence of the appellant’s consent to the operation or on her alternative claim that even if she had given consent, under the particular conditions in which it had been given, it could not be considered “informed consent.”

5. Before addressing the legal conclusions dictated by the proven facts, it is necessary to briefly describe the factual picture regarding the circumstances of the dispute over Appellant’s consent to the operation on her shoulder.

Appellant suffered from pains in her shoulder during the months preceding the operation. As indicated in the affidavit and examination of Dr. Sharvit, the treating orthopedist, and from notes appearing in the patient’s file in the Health Fund during the period preceding the operation, Appellant was sent for a number of tests, including a bone scan. The health file indicates that on November 27, 1987, in view of the scan findings, Dr. Sharvit recommended that the appellant be sent for a biopsy. Until the appellant’s actual hospitalization, no date was set for the recommended biopsy.

As described above, the appellant was hospitalized on January 5, 1988 for an operation on her leg, and she also signed a consent form for the operation. The hospital documents, the illness summary and treatment record, submitted as exhibits, indicated that Appellant had been admitted to the hospital for an elective operation on her leg. On January 7, 1988, the operation date, Dr. Antol – the surgeon who operated on Appellant – wrote the following:

It has become clear that she has been suffering from pains in her right shoulder for half a year; the shoulder was examined (bone scan, x-ray), which indicated Rt. Proximal Humerus Steolitic Lesion. The finding was explained to the patient who agreed to the conduct of a biopsy and at this stage to defer the Triple Arthrodesis.

This note was written by Dr. Antol, who testified that he had informed the appellant of the need for the operation on her shoulder on the morning of the operation, when she was lying on the operating table, after discovering that she had signed a consent form for the operation on her leg.

The trial judge ruled that despite the circumstances under which the information and explanation regarding the intended operation were given to the appellant, immediately before the operation, and not in the customary manner, in view of her existing knowledge of her medical history and previous treatment, she understood the nature of the intended operation. From the judge’s findings, it further emerges that had the consent form signed on the operating table been the sole evidence of the appellant’s consent, he would not have ruled that the appellant was aware of the anticipated operation. However, the consent that she gave must be considered against the background of the information she possessed prior to her hospitalization.

The trial court examined the question of liability from the perspective of the tort of negligence, according to claims raised by Appellant, because even during the trial at the District Court, the claim of lack of consent was one of the central claims made by the appellant’s attorney, and he did not raise the claim of battery.

The following questions therefore arise: If the judge was correct in ruling that the appellant gave her consent to the operation, could it be regarded as “informed consent?”; if not, what is the requisite conclusion with respect to the respondents’ liability in tort?

Negligence or Assault

6. The question is therefore whether medical treatment given without the explicit, intelligent consent of the patient, and without knowledge of all the facts regarding the odds and risks of the treatment, is included within the tort of battery. The question has perturbed many researchers and scholars dealing with torts and has also substantially occupied the courts.

Our case law ruled a long time ago that under particular circumstances, this kind of treatment constitutes the tort of battery:

The problem is whether the prospects and risks involved in the examination were explained to the plaintiff prior to his consent. If explained to him, then his consent is effective and binding and the doctors cannot be impugned with battery or any other tortious act by reason of having performed the examination. If the plaintiff did not receive a complete explanation of the risks, then his consent is meaningless and the examination will be regarded as an act of battery, constituting a tort.

CA 560/84 Nachman v. Histadrut Health Fund [2] at 387.

For this reason, according to this rule, compensation must be awarded for damage caused to a patient treated without his having properly consented to the treatment, even absent proof of the breach of the duty of care, and even absent proof of a causal connection between the failure to provide details as legally required and any damage sustained by the patient. See Reibl [1] 509-510.

Considerable reservation has been expressed regarding the resort to the tort of battery as a way of classifying medical treatment. Inter alia, there is uneasiness in imputing anti-social behavior, tainted by wantonness, to medical treatment that was intended entirely to help the other person:

It would appear that there are many for whom the use of the term “battery” in the context of medical treatment is both morally and intellectually repugnant. This is a term which is commonly understood as implying anti social behavior – hitting a person in the face, for example. Stigmatizing a doctor as “an attacker” by reason of medical treatment given to the patient creates discomfort, especially for those adopting judicial decisions. This explains their hesitation in regarding the criminal offense of battery, or the tort of battery as an appropriate tool for adjudicating cases in which medical treatment was provided without appropriate disclosure of information regarding risks and alternatives.

A. Shapira, Haskama Mudaat Letipul Refui – Hadin Hamatzui Veharatzui [77] at 231.

In his book, The Philosophy of Tort [83], Prof. Englard explains that the transition from use of the tort of battery to the doctrine of “informed consent,” based on medical negligence, is the result of the discomfort occasioned by imputing doctors with wanton anti-social behavior, when their sole intention was to assist the patient:

The retreat from the doctrine of battery has been explained by the discomfort of treating doctors, who genuinely care for the well-being of the patient, under a doctrine aimed at sanctioning anti social conduct, usually perpetrated with the worst kind of intentions. Courts were reluctant to stigmatize the physicians with the label of having committed battery, lumping them into the same category as murderers, robbers and bar-room trollers.

Id. at 162.

In her article, “From Informed Consent to Patient Choice: A New Protected Interest” [94], the author M.M. Shultz writes:

Discomfort with treating doctors under a doctrine aimed at antisocial conduct has prompted most jurisdictions to limit the battery action to those relatively unusual situations where a medical procedure has been carried out without any consent, rather than where the consent has merely been insufficiently informed. The modern allegation of battery typically arises when consent to a particular procedure is given and a different or additional procedure carried out.

Id. at 226.

In accordance with this approach, in most states with tort law resembling our own, use of the tort of battery for dealing with medical treatment given without “informed consent” has all but disappeared. Broadly speaking, it is generally accepted that the tort of battery is only resorted to when the patient received no information at all about the type of treatment proposed for him, or was not informed of an inevitable consequence of the treatment, or if the treatment actually provided was substantially different from the treatment of which the patient was informed. Needless to say, the tort of battery will be recognized when the consent was obtained by misrepresentation.

 On the other hand, in cases of absence of “informed consent”, as opposed to the absence of any consent to medical treatment, the focus in the assessment of tortious liability has moved toward the tort of negligence. In this context, the scholar Prosser writes:

A rapidly growing form of medical malpractice litigation involves the doctrine of “informed consent”, which concerns the duty of the physician or surgeon to inform the patient of the risks involved in treatment or surgery. The earliest cases treated this as a matter of vitiating the consent, so that there was liability for battery. Beginning around 1960 however it began to be recognized that the matter was really one of the standard of professional conduct, and so negligence has now generally displaced battery as the basis for liability.

W.L. Prosser, W.P. Keeton, On the Law of Torts [84] at 189 -190.

The distinction between the absence of consent, in which the treatment may be considered as battery and the absence of “informed consent” which is included in the category of the tort of negligence, also ensures the conceptual distinction between “guilt” and “duty,” where failure to discharge a duty is substantively related to the tort of negligence.

In England, too, where the tort of battery is still used more extensively than in the United States and Canada, it was ruled that the patient’s signature on a consent form affirming that the nature of the operation was explained to the patient is not sufficient, unless he or she actually received a proper explanation of the treatment and its risks. The absence of an explanation regarding the risks of the treatment, as opposed to the absence of an explanation of the substance and nature of the treatment, does not vitiate the consent for purposes of battery, but it does constitute a breach of the doctor’s duty, imposing liability for negligence. See H. Street, M. Brazier, On Torts [85].

This distinction was addressed by Judge Laskin, in his judgment in the Canadian Supreme Court:

I can appreciate the temptation to say that the genuineness of consent to medical treatment depends on proper disclosure of the risks which it entails, but in my view, unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery. Although such a failure relates to an informed choice of submitting to or refusing recommended and appropriate treatment, it arises as the breach of the anterior duty of due care, comparable to the legal obligation to the duty of care in carrying out the particular treatment to which the patient has consented. It is not a test of the validity of the consent.

Reibl v. Hughes (1980) [67] at 10-11.

It should be noted that the trend toward applying the tort of negligence to situations of medical treatment given without informed “consent” does not altogether obviate resort to battery in the context of medical treatment. This claim, however, is limited to special cases in which medical treatment was given in the total absence of consent to treatment on the patient’s part, or when the patient was not informed of its inevitable result.

The tort of negligence in place of battery in cases of a lack of “informed consent” to medical treatment has gradually become accepted in Israeli case law. In his judgment in CA 4384/40 Vaturi v. Leniado Hospital (hereinafter: Vaturi [3]), Justice Mazza dealt with the doctor’s duty to provide information to the patient regarding the medical treatment, within the framework of the duty of care which is one of the foundations of the tort of negligence:

The doctor’s duty to inform the patient of the information he or she has and its possible consequences derives from the general duty of care which the doctor and the hospital owe to the patient. It is based on our right to know about ourselves. This is an expression of the autonomy of the private will of every person, which expresses our human dignity. See CA 1412/94 Hadassa Medical Association Ein Kerem v. Gilad at 525 (Barak, J.). The doctor’s duty of disclosure is not absolute and does not always extend to all the details of the medical treatment. For example, there is no need to provide the patient with information regarding a remote risk attendant to receiving a vaccination that all people receive, and the necessity of which is not disputed. CA 470/87 Alturi v. State of Israel – Ministry of Health at 153. But where the choice of the medical path or the receipt of medical treatment involves substantial risks, the doctors are obliged (subject to certain exceptions) to provide the patient with the information reasonably required in order to reach an intelligent, informed decision whether or not to choose this particular treatment path, with its attendant risks. See Sid-away v. Bethlem Royal Hospital Governors at 655c (per Lord Scarman); the Koheri case, supra, at 171. This at all events is the most minimal parameter of the duty. Its fulfillment by doctors is intended to serve a practical purpose. It constitutes a part of the duty of care imposed upon the doctor in respect of the patient he is treating. If the duty is breached, and the patient suffers damage as a result, the breach may give the patient a right to indemnification based on negligence.

Vaturi [3] at 182 (emphasis added – D.B.).

In accordance with this evolving approach, and considering the particular circumstances of the case before us, my opinion is that the appellant’s case should be dealt with within the framework of the tort of negligence. Resort to the tort of battery for the provision of medical services should be left for those extreme cases in which the medical treatment was given against the patient’s will, or cases in which the treatment was substantially different from the treatment to which the patient agreed, or when the patient did not receive any information regarding the nature of the treatment or its inevitable consequence.

On the basis of this distinction, the case before us can be distinguished from the Reibl case [1], in which, during the course of the operation, the doctor decided to perform an operation that differed from what had been agreed upon in advance, without such a possibility even having been presented to the patient prior to that time, and without there being any urgency to the matter.

In Appellant’s case, the decision to perform the operation was taken by the doctors with the intention of reaching a clear diagnosis, and in order to verify the suspicion of a growth, in view of findings which were discovered in Appellant’s shoulder. According to the findings of the lower court, Appellant was aware of the need for this treatment, even though the evidence indicates that until she was brought into the operating ward, she did not think there would be a need to the perform an operation on her shoulder during the duration of this hospitalization.

Under these circumstances, it was necessary to clarify whether the manner in which the appellant was informed and the manner in which her consent was obtained indicate negligent conduct on the doctors’ part. This in fact is what the lower court did.

Duty of Care

7. Like the District Court, I too believe that the appellant’s case should be examined within the framework of negligence, but my conclusion differs to that of the trial judge. In my opinion, it was proven that the doctors of the hospital were negligent regarding the procedures that preceded the biopsy. Their negligence was expressed in the fact that, in the first place, they did not discharge their obligation to apprise the appellant of the need for a biopsy during the hospitalization in question. The appellant did not receive timely notice of the intention to postpone the operation on her leg, and it was only in the operating room that she received the pertinent details regarding the operation that she was to about to undergo, when she was already sedated and in a state that was inappropriate for making a decision.

 For a patient’s consent to medical treatment to his or her body to be regarded as “informed consent,” the patient must receive appropriate information regarding his or her condition, the nature of the treatment recommended and its purpose, the risks and prospects entailed, and the reasonable alternatives to the treatment proposed. Having the patient sign a consent form is inadequate for the purpose of informed consent. On the nature of the patient’s signature on the consent form for an operation when the patient is in the operating theater or being brought to the theater, Giesen writes that:

It may be doubtful, indeed, whether such a single act of disclosure will ever suffice if made only shortly before the proposed treatment, such as on the very eve of an operation which has already been scheduled, and the information will undoubtedly come much too late when given to a patient already under sedation, or to a patient on his way to the operating theatre, or to a patient in the anteroom of the operating theatre. “A patient is entitled to have enough time and an environment to enable him or her carefully to consider his or her position.”

D. Giesen, International Medical Malpractice Law [86] at 393.

Today an entire chapter of the Patient’s Rights Law deals with “informed consent.” The law does not apply to our case because of the date in which it came into force, but it nonetheless indicates the legislative tendency. Section 3(b) of the law provides that “in order to obtain informed consent, the physician shall give the patient the medical information reasonably required by him in order to decide whether or not to consent to the treatment proposed …”; For this purpose, medical information includes: the nature of the procedure, its purpose, the benefit expected, its risks and prospects, and alternative treatments, all as specified in the law.

Appellant’s case does not require discussion of the question of the scope of the duty imposed on the doctor regarding receipt of the patient’s “informed consent.” As a rule, the question is not simple. Generally, where the operation or treatment is not intended to prevent immediate danger and can be postponed without aggravating the situation, enabling the patient to formulate a decision with the relevant information at his or her disposal, the duty of disclosure becomes broader. Naturally, the degree of risk entailed by the treatment is also relevant to the duty of disclosure, and clearly there are exceptions which exempt the doctor from giving full and detailed information in certain extraordinary cases. For example, emergency cases that require urgent treatment, or cases in which the expected danger is negligible when contrasted with the treatment’s benefit, or when the patient’s condition is such that the disclosure itself may be harmful to him or her. These exceptions now find statutory expression in the Patient’s Rights Law, but, as stated, they are not relevant to the case at hand. See CA 470/87 Alturi v. State of Israel-Ministry of Health [4].

The question of whether a duty of care should be established according to the criteria of the reasonable doctor or the expectations of the reasonable patient was deliberated extensively by courts in different countries, but it does not relate to this appeal. Standard hospital practice for orderly signing of a consent form for operation, after explanation of the prospects, risks and alternatives, expresses accepted law regarding “informed consent.” The duty of giving the information necessary to obtain informed consent to an operation is a duty imposed upon the doctor and owed to the patient; its violation constitutes a breach of the duty of care, and it therefore constitutes negligence. Hence, a doctor is obliged to provide the patient with the information reasonably necessary for the patient to adopt a decision regarding his or her consent or non-consent to an operation or medical treatment.

In our case, given that the doctors deviated from what was considered by Respondent 1 to be accepted practice, we need not examine the broad question concerning the scope of doctor’s duty to give information to the patient. The director of the Orthopedics department in Respondent 1 during the relevant period was Dr. Shweppe. He testified that prior to every operation, it was customary to assemble the entire medical staff and have them meet with the patient, to discuss the case and the anticipated treatment. Dr. Shweppe did not recall whether there had been such a consultation in the appellant’s case, but the trial judge saw no reason to assume any deviation from the practice in this particular case. [But in fact – trans.], absent any medical records, it was for the respondents to discharge the burden of showing that such a consultation was actually conducted. CA 58/82 Kantor v. Moseib [5] at 259; CA 5049/91 Histadrut Klalit Health Fund v. Rachman v. Rachman [6] at 376. The doctors were unable to recall whether there had been such a consultation. Appellant testified that such consultations had been conducted prior to her previous operations in the hospital, but not prior to the operation on her shoulder. Dr. Antol’s memorandum in the patient’s chart from the operation day, together with his court testimony on the matter, support the conclusion that the need for a shoulder operation became clear immediately prior to the operation itself, and that the appellant was informed of the need in the circumstances described above, without any prior consultation. Moreover, the operation itself involved inherent dangers, as demonstrated by the fact that the appellant was harmed, even if negligence was not proven regarding the actual performance of the operation and the post-surgical treatment given to Appellant. The existence of this kind of danger clearly explains the duty of complete disclosure to the patient prior to the treatment.

Under those circumstances, the doctors were duty bound to apprise the appellant of the nature and the gravity of their fear that a tumor had developed in her shoulder. They should have explained to her whether there was a real suspicion of a tumor. They should have apprised her of the operation’s importance and its urgency. They also should have explained to the appellant that there was a chance that the treatment would cause paralysis.

Having the appellant sign the consent form for the operation at such an advanced stage, as described above, is not accepted practice, and it certainly is not the practice which should be accepted and practiced by doctors for obtaining consent. The possibility intimated to her by the treating doctor in the Health Fund, two months before her hospitalization, that she might require a biopsy, does not constitute a full disclosure of information which is required for the patient in order to adopt a decision and give informed consent to the conduct of such an operation. See CC (PAPP) 88/84 Assa v. Histadrut Health Fund [42].

All of the above indicates that Appellant’s doctors violated their duty to fully apprise Appellant of the biopsy operation that she was about to undergo, and it was not proven that, under the circumstances, they were exempt from fulfilling their duty as stated. As such, it can be determined that Appellant’s doctors violated a duty which is part of the duty of care incumbent upon them as doctors providing medical treatment, and in so doing – they were negligent.

The Causal Connection to the Damage

8. The holding that respondents were negligent in the disclosure of information to the appellant and in the manner in which they obtained her consent to the operation compels an examination of the causal connection between respondents’ negligence and the damage caused. The trial judge rejected the appellant’s blanket claim that she had no advance knowledge of the shoulder operation and did not consent to it; accordingly, he was not prepared to address her alternative claim regarding the absence of complete information. Even so, the trial judge ruled that:

Even under the assumption (which I do not share) that the plaintiff did not receive complete information prior to the biopsy, I still have no evidence before me that the damage caused to the plaintiff’s shoulder resulted from the violation of Defendant 2’s obligation to provide all the relevant information to the plaintiff … I received no evidence that under these or any under conditions the plaintiff would not have consented to the performance of the biopsy. There was no proof of a causal connection between the damage that was caused and the doctors’ alleged violation of their duty.

The question is: What issue should be examined by the court when assessing the causal connection, in order to determine the existence of the tort of negligence in cases of absence of “informed consent?”

The question of the causal connection when the damage is not the result of negligent treatment but rather due to the absence of sufficient information for there to have been “informed consent” of the patient is a complex question. Having recognized that this kind of negligent behavior on the doctor’s part is a possible cause of damage, the question is therefore whether or not the patient would have willingly accepted the treatment proposed had the patient been fully informed.

Usually in this kind of negligence action, the patient wants compensation for the direct damage caused by the treatment. The damage in the case of absence of “informed consent” is not caused as a result of negligent treatment. It is rather the result of the bare fact of medical intervention, even if it was not done negligently. Under these circumstances, the causal connection is assessed on the basis of the degree of damage to the autonomous will of the patient and the negation of the patient’s capacity and ability to prevent the treatment given to him or her. In other words, there must be an assessment of the possibility that the patient would have prevented the treatment had he or she been given the information.

9. States that recognized the grounds of “informed consent” as the breach of a duty that creates the tort of negligence have deliberated the manner of proving the causal connection regarding the damage due to the necessity of retroactively assessing a hypothetical occurrence. See Arndt v. Smith (1995) [68] (in Canada); Salis v. United States (1981) [45] (in the United States).

In Israel, in a similar case in which the patient did not receive complete details regarding alternative treatments, Justice Mazza wrote the following:

The causal connection for our purposes does not require a holding in accordance with the accepted causality tests … these tests, which are intended to enable decisions in accordance with the probability indices, are not appropriate for cases in which the court must make a hypothetical assessment of the particular patient’s response had the doctors given him or her details in advance regarding the risks and prospects of a particular medical treatment.

Vaturi [3] at 191.

In that case, the court concluded that when proving the existence of a causal connection requires resolution of the theoretical question of “what would the patient have decided had he or she been given the complete information,” it is not enough to find that an analysis of the probabilities [i.e. more likely than not – ed.] has failed to show that the patient would have chosen not to receive the treatment. According to that approach, while there is no justification for awarding the injured party full compensation for damages absent sufficient proof of the causal connection, it would be wrong to deny any compensation just because the negligent action of the tortfeasor prevented the patient from proving that the negligence caused his or her damages. Accordingly, the holding in that judgment was that in such a case, an assessment is made of the chance that proper disclosure of the information would have caused the patient to refuse the treatment. The degree of damage owed by the tortfeasor will be determined in accordance with the assessment of the likelihood of refusal.

The proof of the causal connection to the damage in circumstances of failure to disclose details regarding medical treatment is complex and raises a number of problems. Legal scholars have disputed the question of whether to adopt the path of an assessment of likelihood in a case of a hypothetical question concerning “informed consent.” See Shultz’s article, supra [94] at 286-87 and Giesen’s book, supra [86] at 354-55, both of which endorse the view of assessment of likelihood.

As opposed to the approach of these scholars, the Court has a practical concern regarding the possibility of substantiating a claim in tort with the possibility of compensation, when the causal connection has not been proven at the level of proof normally accepted in a civil trial. The concern is that such a possibility will open the floodgates in other areas too, and thereby lead to a glut of claims and the imposition of an untenable burden on the medical system and on the legal system too. See Kramer v. Lewisville Memorial Hosp. (1993) [46] at 406; Falcon v. Memorial Hosp. at 64-68.

Personally, my view is that there must be a distinction between proof of negligence in regular negligence cases and proof of negligence when negligence consists of the failure to give informed consent to the treatment. Due to its special character, negligence in the latter category should be determined as a function of the degree of chance, and not in accordance with the balance of probability, provided that this rule is qualified and does not confer entitlement to compensation except in those cases in which it can be determined that there is a significant chance that the patient would not have consented to the treatment.

10. In the case before us, I gave considerable thought to the question of whether a causal connection had been proven between the negligence of the doctors and the hospital in receiving the appellant’s consent to the conduct of the examination and the damage that was caused to her. I also examined the possibility of resolving the question of the causal connection in accordance with the method mentioned above, of assessing the likelihood of refusal and not in accordance with the probability balance. After much consideration, I arrived at the conclusion that in present circumstances, I need not decide the question of whether the assessment of likelihood should be established as the proper test for the causal connection in cases of the absence of informed consent. My reason is that the respondents’ responsibility for Appellant’s damages was proven even in accordance with regular evidentiary tests of balance of probability.

As stated above, the test regarding the existence of a causal connection in a negligence claim occasioned by failure to receive informed consent is, whether the patient would have consented to the treatment had he or she been informed of all the relevant facts. This test is conducted according to the criterion of the reasonable patient under similar circumstances.

We use an objective test of the reasonable patient in order to try to establish the truth regarding the particular patient. Clearly, there is a tremendous practical difficulty in ascertaining the position of the patient at the relevant time, because the question arises only retroactively, at a time when the patient is suffering from the results of the treatment. In numerous judgments, the courts have noted that it is inhuman to expect a person suffering from treatment received to give credible testimony about what he or she would have done at the time of adopting the decision, had he or she been aware of all its possible consequences.

In any event, this difficulty was one of the central considerations that led courts in the United States and Canada to prefer the objective test, adapted to the circumstances, as the criterion for establishing the causal connection. See Canterbury v. Spense [48] at 791; Arndt v. Smith (1997) [69].

Accordingly, the courts that adopted this criterion also ruled that the injured patient’s testimony should not be accorded conclusive weight, even though it is relevant evidence which helps clarify the truth. See Hartke v. McKelway [49] at 1551; Sard v. Hardy [50] at 1026; Bernard v. Char [51] at 670.

In order to determine the probability of whether the patient would have refused the treatment, the court must consider the type of treatment received by the patient and its degree of urgency as opposed to its risks. Within these parameters, it ascertains the patient’s probable response according to the criterion of the reasonable patient in similar circumstances. According to this criterion, a causal connection can be established between the failure to disclose information in violation of the duty of caution and the damage actually caused by the treatment. This objective test does not obviate the need for an assessment relating to the particular patient who has come before the court. The court assesses the degree of damage to the patient’s ability to exercise judgment against the background of the conditions and the manner in which the patient received the information and the entirety of data and circumstances relating to the patient’s physical and mental condition. Against that background, the court makes a judicial assessment, estimating how the patient might have acted were it not for defendants’ violation of their duty. The Canadian court gave the following explanation of the objective test as it relates to the subjective circumstances of the injured patient:

I think it is the safer course on the issue of causation to consider objectively how far the balance in the risks of surgery or no surgery is in favour of undergoing surgery. The failure of proper disclosure pro and con becomes therefore very material. And so too are any special considerations affecting the particular patient.

...

The adoption of an objective standard does not mean that the issue of causation is completely in the hands of the surgeon. Merely because medical evidence establishes the reasonableness of a recommended operation does not mean that a reasonable person in the patient’s position would necessarily agree to it, if proper disclosure had been made of the risks attendant upon it, balanced by those against it. The patient’s particular situation and the degree to which the risks of surgery or no surgery are balanced would reduce the force, on an objective appraisal, of the surgeon’s recommendation.” Reibl [67] at 16 (Leskin, J.).

This test was cited approvingly by the Canadian Supreme Court in its a recent judgment. Arndt [69].

11. The lower court totally rejected the appellant’s account regarding her surprise upon discovering that it was her shoulder and not leg that was operated upon, because it assumed that her prior knowledge regarding the necessity of the operation sufficed to negate the defect in the manner of receiving her consent. Having said that, under the circumstances, the previous information was not sufficient to receive the required consent to the treatment given to her, and in the absence of any proof of prior consultation and transmission of information concerning the nature of the treatment and its attendant risks, it was for the court to ascertain how the appellant would have behaved had she received the necessary information under appropriate conditions.

I considered whether the appellant’s case should be returned to the lower court, in order for it to deal with the existence of the causal connection and to assess the probability of the appellant’s refusal to the operation, had she had all the information. However, I have reached the conclusion that on the basis of the evidence presented by the parties, and in consideration of all the facts before us, it can be determined that the causal connection between the non-disclosure and the damage has been proven.

Respondents did not adduce evidence to substantiate the alleged conclusion that the anticipated risk of the operation was negligible and did not necessitate prior notification to the appellant of its nature. Assuming that the appellant was treated professionally and not negligently, and that the treatment given after the operation was proper, the necessary conclusion is that the disability caused to the appellant was a risk that was endemic to the treatment given to her. In any event, having claimed that the risk of the treatment they gave was not negligent, the respondents bear the burden of proving that the operation was urgent, and that the anticipated danger to the appellant as a result of the operation itself was negligible to a degree that it would not have affected the appellant’s decision had she been informed of it.

As stated, such evidence was not submitted. In the special circumstances of this case, there is sufficient grounds for the assumption that a reasonable patient would have preferred to conduct an additional consultation with an expert regarding the need for the examination, in view of its endemic danger, given that the examination itself had previously been postponed, and in view of the fact that, as it became clear in retrospect, the operation was of doubtful necessity.

I am prepared to assume that in an ordinary case in which the examination was intended to ascertain whether a growth had developed, a reasonable patient would have adopted a different approach, especially if there was urgency in early discovery, and absent any alternative method of clarifying the matter.

However, the appellant’s case is a special one. She was hospitalized in order to rectify a deformity in her leg, which was the result of a birth defect. Under these circumstances, one may assume that as a woman who was disabled from birth, she would have been particularly wary of the endangering the functioning of her right arm, had she been aware of such a danger.

Furthermore, the concern leading to the operation was apparently, from the outset, not regarded as being of any particular urgency. The appellant waited for the operation for more than two months, and a date for the operation was not actually set until her hospitalization. In their affidavits for the District Court, which were found to be credible, Respondent 1’s doctors described the suspicion that led to the decision to perform a biopsy. Dr. Schweppy’s affidavit states that “we decided that the results of the rentogen and the bone scan indicated pathological problems, and that in order to obtain a totally clear picture, there was a need for a biopsy, because there was no definitive diagnosis.” The treating doctor, Sharvit, stated that “the findings provide concern of the existence of a growth … when I determined in the Lin clinic that there is a suspicion of growth of cartilage.”

These comments, viewed together with the other evidence, indicate that the decision to perform a biopsy was not based on an urgent need for an immediate diagnosis.

Considering the degree of negligence involved in the non-disclosure of the information, the way in which the appellant’s consent to the operation was obtained, and the particular circumstances of her case, it can be determined that if the appellant had been aware of all the relevant details regarding the nature of the examination and the risks involved, she would not have agreed to the examination at the date and in the manner that it was performed. For this reason, I conclude that there was proof of the causal connection between the non-disclosure of complete information and the damage caused to the appellant from the treatment she received.

12. After writing my judgment, I had the chance to review the comprehensive judgment of my colleague, Justice Or, and I will add my comments regarding its proposed method of compensation.

I wholeheartedly concur with the credo expressed by my colleague regarding the importance of the individual’s right to autonomy. I think that in principle there ought to be recognition of the possibility of compensation for the violation of that right, though not necessarily in the context of the doctrine of “informed consent.” It appears to be desirable to extend the right of separate compensation for violation of individual autonomy to cases in which a patient was denied the right to decide whether medical treatment would be administered. Still, in the context of non-disclosure of information regarding medical treatment, difficult questions arise when assessing the appropriateness of compensation for this kind of damage, independent of the treatment’s results.

13. The critique of the approach allowing compensation for violation of autonomy in the context of non-disclosure of information, irrespective of the consequences of the medical treatment, has two focuses. The first focus is analytic, concerning the essence of the doctrine of informed consent. The second focus concerns appropriate judicial policy.

Analytically, the doctrine of informed consent is based on the special status granted to the violation of individual autonomy, to the extent that under certain circumstances, such a violation is equivalent to medical negligence, in the sense that it entitles the victim to full compensation for all the consequences of the medical treatment.

When we chose the path of the tort of negligence, we ruled that in cases of failure to disclose information that is relevant and significant about the possible results of the treatment, the doctor’s breach of his or her duty to the patient consists of the fact of non-disclosure. The theory of negligence based on non-disclosure of sufficient information to the patient is based on a number of things, one of the most central being the violation of individual autonomy. Remedy for a violation of that kind will be protected even when it is not specified separately as an aspect of the damage. The various components of the “informed consent” doctrine were summed up as follows by the learned P.H. Shuck:

[I]nformed consent does not simply pursue the contract law goals of individual autonomy, efficiency, and anti-statism; it also advances two related ideas, fault and duty, that pervade and moralize tort law.

Rethinking Informed Consent [95] at 902.

According to supporters of the doctrine of “informed consent”, medical negligence in the disclosure of information justifies compensating the patient for the treatment’s consequences. The assumption is that in principle it is possible to prove the causal connection between the failure to give information and the treatment’s consequences. Legal literature indicates that as a rule, those favoring the compensatory approach for violation of individual autonomy in the context of non-disclosure of medical information are also of the view that in principle there is no recognition of the causal connection between negligence in the disclosure of information and the consequences of the treatment; from their perspective, compensation awarded for violation of autonomy is a substitute for the doctrine of informed consent. As such, it seems that the opinion stating that in the absence of informed consent, compensation can be granted for the violation of individual autonomy, regardless of the consequences of the medical treatment, is consistent with the view of those who dispute the doctrine of informed consent as a part of medical negligence. See Prof. Englard’s book [83] at 607; A.D. Twerski, N.B. Cohen, Informed Decision Making and The Law of Torts: The Myth of Justiciable Causation [96].

Needless to say, the most “blatant” cases of violation of autonomy in medical treatment (for example when the medical treatment is given without the patient having given any consent at all, or where there was absolutely no disclosure of the inevitable result of the treatment) are treated by tort law under the tort of battery. In these extreme cases of non-consent, compensation will be given for the damage in its entirety, even without proof of the causal connection.

The distinction between a blatant violation of autonomy, addressed via the tort of battery, and non-disclosure as a part of medical negligence was dealt with by the Australian Supreme Court in its judgment in Rogers v. Whitaker (1992) [43]. In that judgment, the court distinguished the right to autonomy which is protected by the tort of battery from negligence in giving information, which requires a balance between the duty of the treating doctor and the patient’s right to receive the relevant information:

The right of self-determination is an expression which is, perhaps, suitable to cases where the issue is whether a person has agreed to the general surgical procedure or treatment, but is of little assistance in the balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure.

Id. at 52.

 The Canadian Supreme Court recently criticized the view that gives the patients’ right to decide an independent and separate status from the subject of medical negligence being discussed here:

The suggestion that loss of choice as such merits compensation is related to the suggestion that failure to advise of risk of medical intervention negates the patient’s consent, making the physician’s intervention - tortious battery. This Court unanimously rejected this approach in Reibl v. Hughes.

Arndt [69] at 62 (McLachlin, J.).

In this context, one can also mention the judgment in Vaturi, which emphasizes the complex connection between the duty of the doctor giving medical treatment and patient autonomy. Id. at 181-82.

14. In terms of appropriate judicial policy, I think that when dealing with the question of “informed consent,” though my colleague’s approach is intended to enhance the right to individual autonomy, paradoxically, his approach weakens it. The fear is that this approach will lead to a limitation of the compensation given to the victim of a treatment administered without giving him or her information, and it may even encourage the courts to avoid dealing with the complex question of the causal connection between failure to receive “informed consent” of the patient and the results of the treatment he received. This possibility was raised by Cohen and Twersky in their article in support of the separate claim of damage for the violation of autonomy. Twersky & Cohen [96] at 648.

In considering whether to adopt an approach that makes do with compensation for violation of autonomy, I think that the fear of the victim’s compensation being limited to nominal compensation outweighs the benefit of enhancing the autonomy of the individual. On the other hand, full acceptance of my colleague’s approach allows compensation even in cases in which the treatment was successful and the patient satisfied, if it becomes clear that the patient was not initially presented with full details regarding the treatment. It is doubtful whether this result is desirable.

It should be noted that other legal systems similar to our own have not accepted the rule that compensation can be granted by reason of violation of autonomy in the context of non-disclosure of information, regardless of the results of the medical treatment. I was unable to find a single judgment in which the courts awarded compensation exclusively for violation of autonomy, as distinct from compensation awarded for damage caused as a result of the treatment.

It should be emphasized here that a distinction must be made between compensation for violation of autonomy and compensation for shock or mental trauma upon becoming aware of the grave consequences of unexpected treatment, a distinction made in both of the judgments cited in my colleague’s opinion. See Goorkani v. Tayside Health Board (1991) [66]; Smith v. Barking Havering & Brentwood Health Authority (1989) [56].

These judgments are in accordance with the English approach to liability in the absence of “informed consent.” As indicated above, the position of English law on the subject of “informed consent” differs from that of other common law countries, and English law has yet to confer it with the same scope as it has in the United States and Canada. See I. Kennedy, A Grubb, Medical Law [87] at 172-202; R. Nelson-Jones, F. Burton, Medical Negligence Case Law [88] at 102.

15. Furthermore, recognition of the violation of individual autonomy as an individual claim of damage, while commendable, is still in its “infancy,” and its definition and the way it will be formulated still need to be developed. While tort law grants compensation for non-pecuniary damage, the proposed claim of damage still lacks precise and clear criteria for its application. Moreover, I find it difficult to accept the analogy proposed by my colleague, namely compensation for violation of constitutional rights. For it is unclear whether the damage for a constitutional tort is evaluated according to the criteria of the tort of negligence. This is a complex question which merits a separate discussion. See D. Barak-Erez, Avlot Chukatiot [Constitutional Torts] [73] at 243 and subsequent text. See also Memphis Community School Dist. v. Stachura [57] at 2544 – 45.

16. To conclude: It seems that these problems necessitate particular caution when assessing the cases in which compensation may be made for violation of autonomy as an independent tort and whether it should be done in cases of negligent non-disclosure of medical information. We must decide when and according to which criteria the damage will be assessed. In principle, I think that the introduction of this new claim of damage should initially be assessed in the framework of cases in which there was a blatant violation of human dignity and individual autonomy, where that kind of violation constitutes the main focus of the damage. On the other hand, matters that can be classified as medical negligence should generally be assessed within the context of results of the treatment.

 

In any event, compensation for violation of individual autonomy should not be allowed to undermine the doctrine of informed consent. Accordingly, in my view, compensation for violation of autonomy should only be awarded in rare cases, which I have not deemed it appropriate to define at this stage.

17. In light of my conclusion, were my opinion to win a majority, I would propose that the appeal be accepted and the case returned to the District Court for it to hear evidence regarding the damage caused to the appellant, so that the court can assess the level of compensation for that damage.

Justice T. Or

1. Unfortunately, I cannot concur with the conclusion of my colleague, Justice Beinisch. I will clarify my position below.

2. I accept that the discussion in the district court proceeded on the assumption that the respondents or doctors in their employ were found to be tortuously liable for the tort of negligence and not the tort of assault. Negligence is therefore the only ground we must decide in this appeal.

Within this framework, those responsible for providing medical treatment are obliged to compensate the patient for all bodily damage sustained as a result of the breach of their duty to receive his or her full consent to treatment. In my view, those responsible for giving medical treatment must also compensate the patient for all non-pecuniary damage sustained as a result of the violation of the patient’s right to autonomy, if the medical treatment is administered to the patient without his or her informed consent. The first part of my opinion discusses the respondents’ obligation to compensate the appellant for her bodily damage. My conclusion, which I will explain shortly, is that there was no proof of the required causal connection between the failure to receive the appellant’s informed consent and the bodily damage that she sustained. In the second part of my judgment, I will discuss the obligation to compensate a patient – in our case, the appellant – for non-physical damage sustained due to the violation of patient autonomy in giving medical treatment without the patient’s informed consent. I will first deal with the factual background and then discuss the above-mentioned questions.

The Principle Facts and the Dispute

3. I accept the conclusion reached both my colleague, Justice Beinisch, and the District Court that there was no proof of negligence in the actual decision to perform a biopsy on the appellant’s shoulder, the manner in which the biopsy was performed, or the appellant’s post-operation treatment to address its consequences. These conclusions are well grounded in the District Court’s findings, which were based on evidence that it found reliable. As my colleague explained, there are no grounds for our intervention in these findings.

The claim against the respondents’ doctors therefore focuses on their failure to inform the appellant of the risks and the prospects of the biopsy (hereinafter: the biopsy), creating a situation in which the appellant cannot be regarded as having given her “informed consent” to the biopsy. Here, too, I concur with my colleague that this constituted negligence in the way the doctors who treated her received her consent to the biopsy. However, before doing so, I must stress that, under the circumstances, the biopsy was a medical necessity which any reasonable doctor would have performed.

4. The principle facts regarding the biopsy are as detailed below:

(a)   As the trial court determined:

Around the middle of 1987, plaintiff began suffering from constant pain in the right shoulder, by day and by night. When systematic treatment was to no avail, rentogen photos were taken, followed by a bone-mapping. The latter test indicated ‘a diffuse absorption’ – which is a pathological finding. According to Dr. Eric Sharvit, the orthopedic specialist who treated the plaintiff in Defendant 2’s clinic: “I observed an irregularity in the diffuse absorption, cysts and unremitting pains; diffuse absorption is a pathological finding. No absorption can ever be normal. In mapping, the reason always shows up. It may be cancer, an undiagnosed fracture, or an infection. It may also be a growth…. There was something suspicious that required further clarification.

And further on:

According to Dr Eli Sharvit’s affidavit of April 22, 1991, he examined the plaintiff’s right shoulder on the dates September 8, 1987, October 20, 1987, and November 27, 1987. Sharvit stated that at the end of the examination of November 27, 1987, in the framework of the consultation group, and after everybody had seen her and examined her file, it was unanimously agreed that a biopsy was necessary (emphasis added – T.O.).

As Dr. Sharvit clarified in his testimony, “there was a concern about a destructive process which would be irreversible.” He went on to say that:

[T]here was no explanation for the absorption evidenced by the bone mapping, and a biopsy was therefore required in order to reach a clear diagnosis.

In addition to the above, the district court accepted Dr. Sharvit’s account of events in paragraph 8 of his affidavit:

In other words, I spoke with the plaintiff and, regarding her shoulder, I explained that she would have to have an operation in order to identify the problem, because the findings provided grounds for suspicion of a growth, and an operation was the only way of clarifying the matter. We had this conversation on October 20, 1997, when I determined that there was a suspected growth of cartilage.

The court also referred to the testimony of Dr. Schweppy, affirming it:

The head of the Orthopedic Department in Carmel Hospital at the time of plaintiff’s hospitalization of the plaintiff was Dr. Yitzhak Isadore Schweppy. Dr. Schweppy testified in court that the bone mapping indicated “an aggravated diffusive absorption near the humerus” and that the technician conducting the bone mapping had written (September 1, 1987) “Nature of absorption unclear. Recommend further examination.” According to Schweppy, “the photograph indicates a pathological finding and the mapping also shows these signs. The mapping states that there is no unequivocal finding. All of this, in my opinion, necessitates a biopsy.

In view of all this, and since appellant’s expert, Prof. Stein, did not explicitly contest the need for a biopsy, the court concluded that it was medically necessary to perform it, and there are no grounds for our intervention in this finding. 

(c) Appellant maintained that she had never had problems with her shoulder, that she had never made any complaints in that regard, and that the entire issue of the biopsy came as a total surprise to her. Her version was rejected by the district court in view of the trust it placed in Dr. Sharvit. Relying on examinations performed on the appellant – a photograph of shoulder and mapping of shoulder – the court rightfully concluded that appellant had suffered from shoulder pains and that she was well aware of the “problem” she had with her shoulder.

(d) The court further noted that the appellant almost admitted to having been spoken to regarding the shoulder, prior to the biopsy. It was apparently referring to the following paragraph in her testimony, in which she said:

Prior to the anesthetic I asked why the operation was on the arm and not on the leg. After they performed the operation I asked them.

Para.12.

In this paragraph she had a slip of tongue, indicating that already prior to the operation she asked “why the operation was on the arm.” In other words, she was aware that they were about to operate upon her shoulder. Even so, she immediately “corrected” herself.

At all events, as stated, the entirety of the evidence indicates that the performance of the biopsy was required, as customary in similar cases, to rule out the serious suspicion of it being a cancerous growth.

5. In her judgment, Justice Beinisch explains why the conduct of the operating doctor should be regarded as negligent. I accept that regardless of appellant’s general awareness of the need for such an operation, the doctor failed to discharge his duty to explain to the appellant the importance of the operation and its necessity as opposed to its risks, in order to ensure that the appellant’s consent would indeed be “informed consent.” Prior to the operation there may indeed have been a period of time during which appellant knew that she was about to undergo a biopsy. Nonetheless, the circumstances in which her consent was obtained indicate that she did not give her informed consent. The appellant was initially summoned to the operating room for an operation on her leg. While she was in the operating room, immediately prior to the operation, it was clarified to her that they intended to perform a biopsy on her shoulder, without making the associated risks clear to her, as required. I therefore accept my colleague’s conclusion that there was negligence on the part of the treating doctors in their performance of the biopsy without giving the required explanation of its risks.

The district court determined that appellant had given her “informed consent” to the biopsy. It reached this conclusion in reliance, inter alia, on the conversation between Dr. Sharvit and appellant in October 1987, about two and a half months before the biopsy. However, the contents of that conversation do not substantiate the court’s conclusion. Even if we accept the court’s reliance on Dr. Sharvit’s testimony, his comments to the appellant regarding the need to perform a biopsy did not constitute an explanation of the risks and prospects of the biopsy as required from a doctor about to perform an operation on a patient. Dr Sharvit’s general comments to the appellant were made when she was already on the operating table, awaiting a different operation for which she had been prepared. Clearly, this could not satisfy the requirement of receiving informed consent, as explained by my colleague in her judgment.

So far, I have traversed a long way along the path leading to my colleague’s conclusions. Nonetheless, in one matter I cannot concur with her conclusion. I refer to the proof of the causal connection between the doctors’ negligence and the bodily damage suffered by the appellant as a result of the biopsy. I do not believe that there was proof of a causal connection between the doctors’ negligence and the bodily damage suffered by the appellant as a result of the biopsy. Consequently, my conclusion is that appellant is not entitled to compensation for this damage. On the other hand, it is my view that those responsible for the appellant’s treatment must compensate her for the violation of her right to dignity and autonomy, which flows from the doctors’ negligence. I will first discuss the question of the causal connection between negligence and the bodily damage.

Appellant’s Right to Compensation for Bodily Damage Caused As a Result of the Biopsy – the Causal Connection

6. Where a plaintiff bases a claim on the grounds of medical negligence, he or she bears the burden of proving, inter alia, a causal connection between the doctors’ negligence and the alleged damage, namely that the negligence caused the damage – that but for the negligence, there would have been no damage. This is the rule for all claims grounded in negligence, including claims in which the tort is imputed to the doctor for negligence in failing to discharge his or her duty of disclosure to the patient prior to receiving consent for treatment. See CA 4384/90 [3]; CA 4341/94 Berman (Minor) v. Moore Institute for Medical Information Ltd [7]; see also Shapira [77] at 236. Consequently, it was incumbent upon the appellant to prove that had she received the requisite explanation regarding the biopsy – the importance of the biopsy, compared to its risks – she would not have given her consent to its performance. Should it transpire, however, that even after such an explanation, the appellant would still have agreed to perform the biopsy, it can no longer be said that it was the doctor’s failure to receive her “informed consent” that actually caused the damage that occurred as a result of the biopsy. In other words, in such a case, one cannot say that it was the absence of such consent that caused the damage.

The question is: what would have happened had the appellant actually received all the requisite and relevant explanations regarding the operation and then been asked to give her consent to the biopsy? Upon receiving the information, would she have refused to undergo the biopsy, which would have prevented the damage caused to her by its performance? The answer is not clear:

There are considerable difficulties in responding to the hypothetical causal question of what would have happened if they had conducted themselves in accordance with the law. The response is necessarily dependent on guesses and conjecture, especially with respect to the question relating to hypothetical human responses.

I. Englard, Yesodot Haachraut Benezikin, Dinei Nezikin – Torat Hanezikin Haclallit [74] at 230-39.

The kind of matter being dealt with here poses a particular difficulty: determining whether a patient would have agreed to the operation had he or she possessed all the relevant facts prior to giving consent. In his book, The Philosophy of Tort Law, Englard deals with the question in all its complexity, especially in view of the fact that these cases are not normally decided exclusively by logical considerations. See Id, Informed Consent: The Problem of Autonomy and Compensation in [74] at 166-67; see also CA 4384/90 [3].

Considering the difficulty in answering that question, the Court’s response must be based on the evidence submitted and considerations of common sense and life experience.

7. The case before us also raises the issue of whether the answer to the question presented above should be given according to a subjective criterion, namely, how would the appellant before us have reacted, or alternatively, according to an objective criterion. In other words, how would a reasonable patient have conducted himself or herself in a similar situation. Another possibility is the mixed criterion: how would a reasonable patient in the appellant’s position have behaved.

Even though my tendency is towards the subjective criterion, with the objective criterion serving as an auxiliary tool in its application, we need not resolve the issue in this case. The reason is that in my view, under the circumstances of this case, both the subjective and the objective criterion lead to the same unavoidable conclusion. It may be presumed, with an extremely high degree of certainty, that the patient would have actually consented to the biopsy even if all the facts that were relevant for receiving her consent had been presented to her. In my view, the possibility or the chances that she would not have agreed to it are particularly low, if not altogether negligible.

8. In her testimony, Appellant did not address the question of whether she would have agreed to a biopsy had she received an explanation of its urgency, its dangers and its prospects. In court, she categorically denied any conversations with her doctors regarding her shoulder. She even denied ever having complained about pains in her shoulder. The court rightly rejected this testimony, considering the proven facts: Appellant had been asked to undergo examinations which included an x-ray of her shoulder as well as a bone mapping, and these were in fact conducted.

However, even though she denied that the subject of her shoulder and the need for the biopsy were raised at any stage, nothing prevented her from addressing the hypothetical question of her consent to a biopsy. Appellant was given the opportunity to explain whether or not she would have agreed and her reasons for either decision. Had she utilized the opportunity and explained her stance, the court would have subsequently examined the credibility of her position and reasons, as well as their reasonability. The appellant was silent on this point, even though her particular considerations for not assenting to a biopsy, if she had them, were known only to her.

And so, on this point, the district court correctly said that: “We have no evidence that in these or other circumstances, the plaintiff would not have agreed to the biopsy.”

9. The court cannot speak in the place of the appellant, who was silent on this matter in her testimony. What the court can do is examine the entire complex of circumstances, even without her testimony, and ask whether it indicates that the appellant, as a reasonable person, would have refused the biopsy, had she received an explanation of its need as opposed to its inherent risks. One must assess the likelihood that disclosure of the requisite information would have led the patient to oppose the performance of a biopsy. In deciding this question, the court must consider the type of treatment that the patient received and the degree of its urgency compared with the risks involved and assess the probable response of the patient according to the criterion of how a reasonable patient would have responded in similar circumstances.

This assessment must relate to the time at which the appellant’s agreement was required, in other words, prior to the biopsy, after being presented with all the relevant data and being asked to decide whether or not she agreed to the operation. Clearly, the answer cannot be based on wisdom after the fact, when it was already clear that the concern regarding a cancerous growth had evaporated and that she had been injured as a result of the operation.

10. The circumstances preceding the biopsy were as follows:

(a) Appellant had complained of severe pains in her shoulder, which lead to the conduct of various examinations. The examinations included an x-ray of her shoulder and bone mapping. These two examinations justified further clarifications, due to the possibility of there being a cancerous growth.

As evidenced by experts’ testimony, which the court relied upon, additional clarification was to have been conducted by way of a biopsy. In their examinations, the experts were not presented with any proposition to the effect that there were other means for conducting that clarification, means that would have posed less risk than a biopsy, which entailed surgical intervention. Nor was the court presented with any evidence from which it could deduce that a biopsy was not the only reasonable measure to confirm or negate the existence of a cancerous growth on the appellant’s shoulder. The circumstances as they were presented to the court indicated the clear necessity of the operation, and any person who cared about his or her health would have given consent, in the absence of extreme unusual circumstances that would have dissuaded the patient from consenting. There was no evidence of such circumstances in this case.

(b) All surgical interventions involve certain dangers. Unfortunately, one of those became reality in the appellant’s case. Even so, it is commonplace that the mere existence of an element of danger does not prevent operations or the performance of examinations which are medically necessary. It must be stressed that in our case, no evidence was submitted of any particular risks, beyond the ordinary risks attendant to any surgical intervention, which are involved in the performance of a biopsy. By itself, the fact that the appellant was injured as a result of the operation provides no indication about the nature of the risks that are part of the biopsy performed on the appellant.

(c) My colleague, Justice Beinisch, suggested that had appellant been apprised of the need for the biopsy as opposed to the risks entitled therein, then presumably, like any other any reasonable patient, she would have preferred to receive a second opinion regarding the need for the examination. I do not accept this presumption. As early as October 1987, it had been explained to the appellant that an operation would be necessary in order to examine the problem. Sec. A of Dr. Sharvit’s affidavit. Appellant denied that the meeting with Dr. Sharvit ever took place, and we heard nothing from her to indicate that she would have consulted with an additional expert had the need for a biopsy arisen. In this context, I will mention that Appellant had long been in the treatment of doctors in respondents’ orthopedic department, and she would naturally trust them. The same doctors had both recommended and performed other operations on the appellant without her having consulted an additional expert. Furthermore, in view of the proven need to perform a biopsy, it is reasonable to assume that any additional expert would have recommended the same examination. These facts help us understand the testimony of the respondents’ experts, upon which the district court saw fit to rely.

11. On the basis of these data, in my opinion, not only was there no proof that Appellant would not have agreed to the biopsy had she been presented with all the information necessary in order to receive her consent, but the circumstances indicate that she would actually have agreed to it. The examination was required in order to ascertain the existence of a serious risk to her health as a result of a cancerous growth, and Appellant had previously put her trust in the respondents’ doctors; these factors and all the other circumstances, too, point very clearly in this direction. Like any reasonable person, the appellant would have agreed to it.

Admittedly, despite the fact that at the end of November 1987, the medical team of the Orthopedic Department of the hospital determined that there was a need for a biopsy, it was not actually performed until January 7, 1988. Arguably, in view of the clarification required regarding the shoulder, it would have been appropriate to recommend the performance of the biopsy at an earlier date. The question as to why this didn’t happen was not clarified in the district court, because the witnesses were not fully examined on this matter. Even so, when the appellant was brought to undergo the leg operation, the doctors considered the biopsy operation urgent to a degree that gave it priority over the leg operation that the appellant required. This fact indicates a dimension of urgency in the performance of the biopsy.

12. My conclusion that there was no proof of a causal connection between breach of the duty to receive the informed consent of the appellant and the performance of the biopsy is based on considerations similar to those adopted by other courts in the past in rejecting similar claims for compensation for bodily damage in tort actions. I will cite two examples.

In Smith [56], an operation was performed on plaintiff’s spine. The operation involved a risk factor of a 25% chance that three of the plaintiff’s limbs would be paralyzed. Plaintiff was not informed of this risk prior to the operation, and as a result of the operation, she was indeed inflicted with paralysis in three limbs. She subsequently filed suit, demanding compensation for the bodily damage.

Based upon the doctors’ testimonies, the court ruled that the doctors were negligent in their failure to inform the patient of this risk. Even so, the action under this head of damage was rejected because it was determined that a causal connection between the omission of failing to inform about the risk of that damage and the damage that was actually caused had not been proven. The court noted that the evidence presented did not indicate any particular factors that might have influenced the plaintiff’s subjective position regarding the question of whether to receive the treatment or not. As for specific factors regarding the treatment, the court pointed out, inter alia, that failure to treat the patient within a short period of time would have left the plaintiff paralyzed in all the limbs of her body. Furthermore, the danger to which she would have been exposed if the operation had not succeeded would not have been more severe than the danger that she could have expected had she not undergone the operation. On the other hand, had the operation succeeded, it would have postponed the plaintiff’s disability for a significant period of time. The court therefore concluded “unhesitatingly” that there was a strong likelihood that the plaintiff would have agreed to undergo the operation even had she received full information and that it was “in the highest degree unlikely” that the plaintiff would have refused to undergo the operation. Consequently, the court rejected the plaintiff’s claim for compensation based on the bodily damage caused to her.

The court acted similarly in Goorkani [66]. In that case, a man was treated with a particular medicine for an eye disease from which he suffered. Treatment with this medicine for a period exceeding a few months, at the dosages being given to the plaintiff, involved a high risk of infertility. In spite of the ongoing nature of the treatment, which extended for over a year and a half, plaintiff was not informed of the danger. The treatment solved his problem of vision, but the risk of infertility materialized, culminating in a suit for damages compensation.

The court ruled that in failing to give the information, the doctors breached their duty of care to the plaintiff. Nonetheless, his claim for compensation for bodily damage was rejected in the absence of the causal connection between the breach and the stated damage. In its ruling, the court considered the fact that the treatment was given to the plaintiff during his studies, while he was working towards an engineering degree. At that time, his motivation to complete his studies was particularly strong. As such, the problems regarding his vision caused him severe anxiety and even led to emergency hospitalization for treatment of this problem. Considering the fact that at that time of his life, the plaintiff was also experiencing marital problems, the court’s view was that even had he been informed of the danger of infertility, the plaintiff would have taken that risk in order to save his vision. In other words, the path of action chosen by the plaintiff would not have changed, even had the doctors discharged their duty to give him all the relevant information. Plaintiff’s claim was therefore rejected under this head of damage, in the absence of a causal connection between the violation and the damage.

I did not cite these two examples in order to prove that that the conclusion in the two aforementioned cases regarding the absence of a causal connection was the necessary conclusion in those cases. I cited them only in order to illustrate that when negligence is proven regarding the failure to receive informed consent for the operation, the court will not be afraid to determine, on the basis of the facts of the case, that there was no causal connection between the negligence in not receiving informed consent to the operation and the bodily damage caused by the operation.

13. My conclusion is therefore that the appellant is not entitled to compensation for bodily damage caused to her as a result of the biopsy. In view of this result, I need not express my opinion as to what the result would have been, had it been possible to prove that the balance of probability indicated that Appellant would have refused to receive the treatment had she been aware of all the relevant facts. For example, had it been possible to determine that there was a 30% chance that she would have refused to undergo a biopsy, the question might have arisen as to whether to give monetary expression to the loss of that chance, as a result of the breach of the duty to receive the appellant’s informed consent to the biopsy. It has been argued that in such a case, the appellant should be entitled to compensation calculated as a function of the degree of probability that she would have refused to perform the biopsy. My colleague, Justice Strasberg-Cohen, adopted this position in her opinion in this case, similar to her position in CA 6643/95 Cohen v Histadrut Klalit Health Fund [8] (see also Justice Mazza’s opinion in CA 4384/190 [3]). In the example that I gave, this would mean that appellant would be entitled to compensation equivalent to 30% of the damage caused as a result of the biopsy.

In view of my conclusion regarding the causal connection, under the facts of this case, I will not express my opinion on the question, and it will remain open, pending deliberation and decision in an appropriate case.

14. This completes our discussion of whether or not Appellant is entitled to compensation for bodily damages, but it does not complete my judgment. The additional question requiring resolution is whether compensation should be awarded to the appellant for the non-bodily damage sustained by her due to the violation of her autonomy, deriving from the fact that an operation was performed on her body without her having given her informed consent. I will now examine this question.

IntroductionThe Right to Autonomy

15. The point of departure for this discussion is the basic recognition that every person has a fundamental right to autonomy. Every individual has the right to decide his or her deeds and wishes in accordance with his or her choices, and to act in accordance with those choices. The right to autonomy is, in the language of that definition, “his or her independence, self-alliance and self contained ability to decide.” F. Carnelli, Crisis and Informed Consent: Analysis of a Law-Medicine Malocclusion [97], n.4 at 56. In a similar vein, Justice Cheshin stated that: “the law recognizes the autonomy of the individual to formulate his or her will as he or she considers appropriate, for his or her own ‘good’; it is the individual who decides his or her own ‘good’: his or her ‘good’ is his or her will, and his or her will is his or her ‘good.’ A person’s ‘will,’ whether explicit or implied, includes that person’s ‘good.’ A person’s ‘good’ is inseparable from his or her will.” FHC 7015/94 Attorney General v. Anonymous [9] at 95-96. A person’s right to shape his or her life and fate encompasses all the central aspects of his or her life: place of residence, occupation, the people with whom he or she lives, and the content of his or her beliefs. It is a central existential component of the life of every individual in society. It expresses recognition of the value of every individual as a world unto himself or herself. It is essential for the self-determination of every individual, in the sense that the entirety of an individual’s choices constitutes his or her personality and life. See D. Herman, The Basis for the Right of Committed Patients to Refused Psycho-tropic Medication [98].

16. The individual’s right to autonomy is not expressed only in the narrow sense of the ability to choose. It also includes another –physical – dimension of the right to autonomy, relating to a person’s right to be left alone. HCJ 2481/93 Dayan v. Commander of Jerusalem District [10] at 470-72. The import of the right is, inter alia, that every person has freedom from unsolicited non-consensual interference with his of her body. Dworkin made this point when addressing this aspect of individual autonomy:

It is a physical concept rather than an intellectual one. If you touch me or eavesdrop on me, you have injured my autonomy by invading my space. If you actually do something to change my body, you have injured my autonomy by changing the very constitution of what I am.

R.B. Dworkin, Medical Law and Ethics in the Post-Autonomy Age [99] at 733.

17. The recognition of a person’s right to autonomy is a basic component of our legal system, as a legal system in a democratic state. R. Gavison, Esrim Shana Lehilchat Yardor – Hazechut Lehibacher Vilikachei Hahistoria [78]; HCJ 693/91 Efrat v. Commissioner of the Population Registry in the Ministry of Interior (Efrat) [11] at 770. It constitutes one of the central expressions of the constitutional right of every person in Israel to dignity, a right anchored in the Basic Law: Human Dignity and Liberty. Indeed, it has already been ruled that one of the expressions of right to dignity is “the freedom of choice of every person as an individual being” and that this reflects the conception that every person … is a world in himself or herself and an end unto himself or herself.” HCJ 7357/95 Baraki Petar and Humphries (Israel) Ltd. v. State of Israel, (hereinafter, Baraki Petar and Humphries [12] at 783-84) (Barak, P.). President Barak further noted that, “The autonomy of individual will is a basic value in our legal system. Today it is anchored in the constitutional protection of human dignity.” HCJ 4330/93 Ganem v. Tel Aviv District Committee of the Bar Association (Ganem) [13] at 233-34. In this context, President Shamgar gave the following explanation of human dignity:

Human dignity is reflected, inter alia, in the ability of a human being as such, to freely form his or her personality at his or her own free will, to express ambitions and to choose the means of realizing them, to make his or her own volitional choices, not to be subjected to arbitrary coercion, the right to fair treatment by any authority or any other individual, to benefit from the inherent equality of all human beings …

CA 59942/92 Anonymous v. Anonymous [14] at 42.

18. The right to autonomy is “a framework right.” 3 A. Barak, Parshanut Bimishpat [Interpretation in Law], Parshanut Chukatit [Constitutional Interpretation] [76] at 357-58. Accordingly, this right served as a basis for deriving numerous specific rights. For example, it was the basis of the right of every person to choose his or her family name (Efrat [11]); for the right of the criminally accused not to be present at trial against their will (Baraki Peta Humphries, supra [12]; it was accorded weight regarding the question of appointing a guardian for another person (CA 1233/94 Cohen v. Attorney General [15] paras. 4,5, (Strasberg-Cohen, J.)). It was the basis for the fundamental right of every person to freedom of movement in Israel. HC 5016/96 Horev v. Transportation Minister [16] at 59-60 {256-57} (Barak, P.). It was also the basis of a person’s right to choose his or her own attorney to represent the person in court. Ganem, supra [13]. It was also given significant weight regarding the question of whether and to what extent one can recognize the validity of the adoption of an adult person, based on the approach that “In our times, when ‘human dignity’ is a protected, constitutional right, we must give effect to the individual's desire to concretize his or her own personal being …” CA 7155/96 Anonymous v. Attorney General [17] at 175 (Beinisch, J).

19. A person’s right to dignity and autonomy are cardinally important in the context of medical treatment. Medical treatment is part of the inner core of a person’s right to control his or her life. The impact it may have on a person’s lifestyle and quality of life may be direct and often irreversible. Accordingly, the derivative of a person’s right to autonomy is the right to receive information regarding the medical treatment he or she receives in a hospital. LCA 1412/94 Hadassah Medical Association, Ein Kerem v. Gilad [18] at 525. In the same vein, it was held that a person may not be pressured, either directly or indirectly, into consenting to an operation on his or her body which he or she does not want by way of reducing the compensation to which he or she is entitled. CA 4837/92 “Eliyahu” Insurance Company v. Borba [19]. This expresses the conception that “a medical operation constitutes an assault on a person’s body, and a person must retain autonomy over his or her body to decide whether he or she desires such an assault or not.” Id. at 261. The patient is entitled to refuse treatment, even if its advantages exceed its disadvantages and its prospects outweigh its dangers. The central focus of the decision to perform medical treatment is primarily the patient’s rights as a person, especially his or her right to dignity and autonomy, and only to a lesser extent, the medical repercussions of his or her decision. See R. Macklin, Symposium: Law and Psychiatry, Part II: Some Problems in Gaining Informed Consent from Psychiatric Patients [100] at 349-50. See also Justice Mazza’s opinion in CA 4384/90 [3] at 181.

The right to autonomy is also the main foundation of the doctrine of informed consent under which, subject to certain exceptions which are not relevant here, no medical procedure can be performed on a person’s body unless his or her informed is given. CA 3108/91 [1] at 91. In this context, the rule is that “where the choice of a medical course or the receipt of medical treatment involves substantial risks, doctors are obliged (subject to exceptions) to provide the patient with the information that is reasonably necessary for him or her to reach a personal and informed decision as to whether or not to choose the particular medical treatment and to take the risks involved. CA 4384/90 [3] at 182 (Mazza, J.). The decision concerning medical treatment … “must be an individual decision which first and foremost takes into account the will and choices of the patient himself..” Id. Justice Dorner summarized this point well in CA 434/94 [7]:

The patient is not an object. The patient is a subject who bears the consequences of the risks and chances that the doctor takes when choosing the manner of treatment. As such, the patient has the basic right, flowing from the autonomy of the individual, to make an informed decision, i.e. with awareness of the relevant facts, whether to agree to medical treatment being proposed to him or her.

Id. at 212.

20. Parenthetically, it should be noted, in order to provide a complete picture, that in 1996, the Patient’s Rights Law was enacted. The purpose of the law is “to establish the rights of a person applying for, or receiving medical treatment and to protect his or her dignity and privacy.” Sec. 1. The law prescribes, inter alia, a detailed arrangement regulating the subject of the patient’s informed consent to medical treatment Sec 13-15. This law does not apply in our case, given that it was enacted after the biopsy was performed on the appellant.

Violation of Autonomy: A Remunerable Damage Under the Tort Ordinance [New Version]

21. Returning to the case before us. As I indicated above, under the circumstances of this case, the duty to receive appellant’s informed consent to the biopsy on her shoulder was not discharged. This was a violation of appellant’s basic right, as a human being, to dignity and autonomy. Does this fact confer the appellant with a right to compensation, even if the appellant suffered no bodily damage as a result of the failure to receive her informed consent?

The first question to be addressed in this matter is whether or not the damage involved in the harm to the patient’s dignity and autonomy is “damage” in the sense of the Tort Ordinance [New Version]. In my view, this question must be answered affirmatively. The term “damage” is defined in Section 2 of the Tort Ordinance [New Version]. The definition is broad, including “loss of life, loss of assets, comfort, bodily welfare or reputation, or detriment thereof, or any other similar loss or detriment.”

In the framework of this definition, protection is given to numerous intangible interests. As such, compensation is awarded for non-pecuniary damage, such as pain and suffering, which are part of the bodily damage caused to a victim. The breadth of the definition led to the ruling that any harm to bodily comfort, pain and suffering, even without physical expression, even if not accompanied by any bodily damage of any kind, may constitute remunerable damage in a tort action. CA 243/83 Jerusalem Municipality v. Gordon [20] at 139 (hereinafter - Gordon). In accordance with this approach, the Tort Ordinance [New Version] also protects “the victim’s interests in his or her life, comfort, and happiness.” Id. at 141. Accordingly, the Court ruled that a person harassed by reason of a criminal procedure that originated in the negligent adoption of a mistaken criminal procedure against him is entitled to compensation from the prosecuting authority for that damage. Id.

In a series of subsequent judgments, the Court trod a similar path, awarding damages for harming intangible interests of plaintiffs in tort actions. Hence, the Court ruled that the owner of a copyright is entitled to compensation for psychological damage and emotional distress caused by the violation of the right. CA 4500/90 Herschko v. Aurbach [21] at 432 (Levin, D.P.). This was also the ruling regarding damage to a person’s dignity and freedom occasioned by his coerced and illegal hospitalization in a mental health hospital. CA 558/84 Carmeli v. State of Israel (Carmeli) [22] at 772 (Netanyahu, J.). Similarly, the Court ruled that the suffering sustained by a woman whose husband divorced her under circumstances of duress constitutes compensable damage. CA 1730/92 Matzrava v. Matzrava [23], para. 9 (Goldberg, J.).

The same applies to the violation of a person’s dignity and sensibilities which constitute a fundamental head of damages in the tort of assault and in the tort of false imprisonment. See H. McGregor, On Damages at 1024, 1026.

Against this background, I think that the violation of human dignity and right to autonomy caused by the performance of a medical procedure on a person without his or her informed consent entitles him or her to compensatory damages under tort law. The illegal harm to a person’s sensibilities attendant to the failure to respect the basic right to shape his or her life according to his or her own will constitutes a detriment to that person’s welfare and falls within the aforementioned category of “damage.” It matters not whether we regard it as damage to “comfort” or “or any other similar loss or detriment” under the definition of the “damage” in section 2 of the Ordinance. We have dealt with the centrality of the right to autonomy in shaping the identity and fate of a person in the society in which we live. The right to autonomy is central to the formulation of a person’s identity and fate in our society. It is a crucial component of a person’s ability to live as an independent and thinking individual. The inevitable conclusion is that this right is an essential part of a person’s interest in “his or her life, comfort, and happiness” (Gordon [20] at 122), and its violation may entitle the individual to compensatory damages. As Crisp wrote:

One’s well-being is constituted partly by the very living of one’s life oneself, as opposed to having it led for one by others. The fear we have of paternalism does not arise merely from the thought that we know our own interests better than others, but from the high value we put on running our own lives.

R Crisp, Medical Negligence, Assault, Informed Consent and Autonomy, [101] at 82.

A person is not an object. Every legally competent person is entitled to have his or her wishes respected by society and its members, in all important matters relating to that individual, provided that he or she does not harm others. LCrim 6795/93 Agadi v. State of Israel [24] at 710. It derives from the recognition of a person’s intrinsic value and of the fact that all people are free. Violation of this fundamental right, other than by force of legal power or right, seriously vitiates individual welfare, constituting damages for which compensation can be awarded.

Violation of Autonomy, Violation of the Doctor’s Duty of Care to the Patient

22. Our affirmative answer to the question of whether the damage discussed entitles its victim to compensation under the Tort Ordinance [New Version] does not terminate the discussion. Where a claim is based on negligence, the victim’s right to compensation depends on whether the tortfeasor owes a duty of care to the victim to prevent that damage. Recognition of this obligation is a function of “considerations of legal policy.” Gordon [20] at 140. Gordon ruled that the tort of negligence also encompasses a duty of care for damage which is neither pecuniary nor bodily, caused to persons within the first circle of risk, in other words, the targets of the injurious activity. In this context, Justice Barak ruled that:

The tort of negligence should provide equal protection to both the victim’s interest in his or her body and money and his or her interest in life, comfort and happiness. Non-pecuniary damage should not be regarded as “parasitical,” only to be tolerated when ancillary to pecuniary damage. It should be recognized as independent damage, meriting compensation as such. Human dignity, a person’s reputation, comfort, and mental well-being are important to proper societal life and must receive the appropriate protection granted to all other pecuniary interests. A person’s body and property are no more important than his or her grief.

Gordon [20] at 142.

Application of these considerations in a case of the type at hand tips the scales in favor of recognizing a victim’s right to compensation for non-pecuniary damages. The tortfeasor – who was responsible for providing the treatment – is clearly capable of anticipating the damages that will ensue from the violation of the person’s basic right to autonomy should the person fail to receive the information necessary to decide whether or not to undergo the treatment. See CA 195/91 State of Israel v. Levy [25] at 65-66 (Shamgar, P).

The person responsible for providing treatment and his or her patient are connected by relations of “proximity” within the tort law meaning of the term. This term refers to the component of duty of care, and it relates to “a special connection of different kinds between the tortfeasor and the victim.” It serves as “a means of control and supervision over the borders of responsibility by delimiting the “circles of danger.” Y. Gilad, Al Hanachot Avoda, Intuitzia Shiputit Veratzionaliut beKeviat Gidrei Achrayut BeRashlanut [79] at 322. A particularly close and intimate connection exists between the patient and the person responsible for his treatment in view of the treatment’s potentially far-reaching implications for the patient’s life and welfare. Against this background it was ruled that the patient-doctor relationship is predicated on a relationship of trust which “is the basis of the patient’s readiness to place his or her life, health, and welfare in the doctor’s hands.” CA 50/91 Sabin v. Minister of Health [26] at 34 (Shamgar P.). The patient undergoing a medical procedure is in the primary circle of risk of suffering harm if, prior to that procedure, the patient does not receive all the relevant information. Recognition of the patient’s right to compensation will not create broad circles of obligations which we cannot anticipate in advance. Consequently, the proximity requirement derives from the consideration that “according to any consideration of legal policy,