Who is Authorized to Define Pikuach Nefesh?

 

Introduction

In the previous shiurim, we dealt at length with the question of hutra, "permitted," versus dechuya, "set aside," as it pertains to matters of pikuach nefesh, and its ramifications in various and varied areas.

In this shiur, we will move on to a completely different issue – one of the fundamental questions that arises when we come to decide in practice on matters relating to pikuach nefesh.

In most areas of Torah, halakhic questions are directed to qualified halakhic decisors. A halakhic decisor is, of course, required to fully understand the case under consideration; as has been said in the name of the Chazon Ish, most mistakes in halakhic rulings stem from a lack of understanding of the reality, rather than from a lack of knowledge of the halakha.  But once a halakhic decisor has examined the situation and fully understands the question, the answer that he provides must be based on the halakhic sources across the generations. 

In questions relating to pikuach nefesh, however, two parties seem to have a role: the halakhic decisor and a professional (in medical matters, the doctor, and in military matters, the commander in charge). The law itself, that pikuach nefesh sets aside the Shabbat prohibitions as well as fasting on Yom Kippur, is known to all and does not require halakhic decision-making. The question that needs to be answered is often not a halakhic one, but rather a factual question regarding the level of danger and concern for human life in the case under discussion.  

The Source of the Law – “At the Word of Experts”

The words of Chazal on this matter are clear and unequivocal. The Mishna in tractate Yoma says as follows:

A sick person is fed at the word of experts. And if no experts are there, one feeds him at his own wish until he says: Enough. (Yoma 82a)

The Mishna deals with a dangerously sick person who is required to eat on Yom Kippur, and the person who is notably absent from the discussion is the rabbi to whom the question is directed. As someone who issues halakhic rulings, I can attest that the eve of Yom Kippur and the days before it are among the busiest of the entire year, with numerous halakhic questions regarding fasting being raised regarding sick people, pregnant women, and breastfeeding mothers. Without a doubt, this is the way of the world, but according to the plain sense of the Mishna, there is no need for this. The questions should be directed to the "experts," that is to say, to a doctor, and not to a rabbi.

  

The Shulchan Arukh codifies this law in the laws of Yom Kippur, though with one qualification (which originates in the words of Rabbeinu Yerucham):

If the doctor says he is not familiar with the disease, he is considered the same as a layman, and his opinion is of no consequence. (Shulchan Arukh, Orach Chayim 618:6)

Defining a doctor as an "expert" requires expertise on his part. If a doctor is not an expert, and even if he is only not an expert in the disease from which the sick person is suffering, his opinion is of no consequence.

This ruling applies not only to fasting on Yom Kippur, but also to matters of pikuach nefesh on Shabbat:

Every illness that the doctors say is dangerous… they desecrate Shabbat for it… And there is someone who says that it does not require an expert, because everyone is considered a bit of an expert, and a doubt when a life is at stake is resolved leniently. (Shulchan Arukh, Orach Chayim 328:10)

The Mishna Berura explains there:

“It does not require an expert” – Nevertheless, this is only when he says that he is familiar with that disease, as stated in section 618. (Mishna Berura, ad loc., no. 27)

If so, both on Shabbat and on Yom Kippur, the laws of pikuach nefesh are decided by an expert, or by any person with a solid understanding of the medical reality. 

Uncertain Pikuach Nefesh

There are situations in which the decision on questions concerning pikuach nefesh on Shabbat or Yom Kippur is clear and simple: When a person collapses on Shabbat, and it appears that he has had a cardiac event, there is no need for a medical opinion; it is clearly permissible to do whatever is necessary in order to save the person's life as quickly as possible. So too when a terrorist penetrates a settlement, there is no need for the professional opinion of a senior commander to understand that everything possible must be done to neutralize him.

However, in many cases, the medical opinion itself is not certain, because it is based on hypotheses and assessments rather than on an unequivocal determination. According to the simple understanding, even in such situations, one must be concerned about the danger, for there is a general rule that even "uncertain pikuach nefesh" sets aside all of the mitzvot in the Torah.

An interesting application of this principle is found in a responsum of the Chatam Sofer. The Chatam Sofer has a novel position regarding the credibility of doctors with respect to halakhic issues, and he relates to the issue in many places in his responsa and in his novellae to Shas,[1] though this is not the place to expand upon the matter in full. What concerns our discussion is that despite the Chatam Sofer's reservations about doctors’ credibility in relation to individual cases (he maintains that doctors are trusted to diagnose phenomena, but not necessarily individual cases), or in relation to medical information tested on non-Jews and not on Jews (he maintains that there may be real physiological differences between Jews and non-Jews), he himself emphasizes that the credibility of doctors with respect to matters of pikuach nefesh is sweeping: 

Regarding the rule about the credibility of doctors, the Tur (Yoreh De'a 157) writes that the Ba'al ha-Teruma has reservations, and we must say that it is not similar to pikuach nefesh on Shabbat and Yom Kippur, where it suffices for us if his speech creates a situation of uncertain pikuach nefesh. But here [regarding the law of a woman who bleeds on account of sexual relations] we require thorough clarification. (Responsa Chatam Sofer, Yoreh De'a, part II, no. 158)

It seems the opinion of the Chatam Sofer is that even if we do not rely on medical opinions in other halakhic areas, when it comes to any matter of pikuach nefesh, the accepted law is that even uncertain pikuach nefesh sets aside every commandment in the Torah.

Excessive Safety Margins

Despite what has been said thus far, there are places where we find a certain reluctance to rely on expert medical opinion, even in matters of pikuach nefesh. In order to understand this, let us examine the words of the Bi'ur Halakha, from which we can learn about two different reservations.

The Shulchan Arukh (Orach Chayim 618:1) rules that even a non-Jewish doctor is authorized to define a particular situation as life-threatening. The issue of the credibility of a non-Jewish professional is very broad, and this is not the place to deal with it.[2] But for our purposes, let us note that the Bi'ur Halakha has reservations about this sweeping generalization:

It is written in the book, Tiferet Israel, that today one must examine the matter, for I have seen that they have lost their credibility, for regarding every mild disease they always say that if the person fasts, he will be putting himself in danger…

And also in Responsa Ru'ach Chayim, no. 551, letter 4,[3] even regarding Jewish doctors, many of whom are suspected of transgressing the words of the Torah and desecrating Shabbat, and they too do not fast because of irreverence – much study is needed to determine whether one can rely on them; see there. In truth, the matter depends on the decisor's assessment of the situation. (Bi'ur Halakha, Orach Chayim 618:1, s.v., choleh she-tzarikh)

The Bi'ur Halakha's first argument is that sometimes doctors adopt excessive cautionary measures, and determine that even very minor illnesses bar fasting on Yom Kippur.

Indeed, it is often difficult to distinguish between "safety margins" and "hysterical margins"; that is to say, between situations of cautious and responsible risk management and situations in which exceedingly unlikely dangers are factored in. The question becomes even more complex in situations where it is evident that the doctor is afraid of a medical malpractice suit, so that from his point of view, it is better to tell every patient and anyone who seeks his advice to eat on Yom Kippur. As mentioned, the issue is complex and requires a precise examination of each case based on its own particulars.

So too in the military world, it is very difficult to establish iron clad rules on these issues. Sometimes a new commander who has recently arrived in a particular sector is not yet familiar with it in any depth, and this may lead to excessive security measures. On the one hand, he is responsible for the sector, and therefore he is the "expert" on the basis of whose opinion matters of pikuach nefesh should be decided. On the other hand, the feeling is that there is room to review and consider matters more thoroughly. Again, each case must be examined in accordance with its own particulars. This is how we summarized the matter in Torat ha-Machaneh:

In practice, the decision will be made by the commander of the sector, in light of the principles of "use of force" established by the Operations Division, and based on a balanced and serious approach to examining the risks, together with sensitivity to the sanctity of Shabbat and its observers. All of this, of course, with cautious avoidance of arrogance, on the one hand, and of panic and excessive safety measures on the other. (Torat ha-Machaneh, vol. II, chapter 36, 10 [emphasis mine – A.S.])

As a marginal note, it is important to emphasize once again that only the commander bearing sectorial responsibility is authorized to decide on these questions. Already in the Talmudic passage in Yoma, we find an extensive discussion on the question of what to do when the doctors disagree. The laws governing this issue are very detailed, but the very phenomenon of experts disagreeing with each other is common. In medical fields, it is very common to seek out a second opinion, but in matters of security, there is one commander who bears the responsibility, and thus the authority lies in his hands. Different opinions among different commanders are certainly possible, but as long as we are not dealing with a safety factor that is clearly excessive, only the current commander is authorized to decide.[4]

For example, in one of the settlements in Judea and Samaria, a dispute arose between the residents (and the rabbis) on the question of whether it was necessary for a security vehicle to patrol the settlement even on Shabbat. In the end, it was decided to find a non-Jewish security guard, and only he would drive the car on Shabbat. Shortly afterwards, the commander of the regional division changed. The new commander established that there was no need for a security vehicle to drive inside the settlement on Shabbat.

Now, does this mean that the patrol up until now was unnecessary or forbidden? God forbid! The commander of the regional division is authorized to establish defensive and security guidelines in the localities in his sector, and therefore it is only natural that the guidelines will change in accordance with his outlook and experience (and of course also according to current assessments of the situation, which can certainly change from time to time). In the end, the commander is the one authorized to decide the matter, and his opinion is the halakhically binding expert opinion.

Professional Opinion Without Extraneous Considerations

In the continuation of the words of the Bi'ur Halakha, the issue of the doctor's religiosity seems to be significant in itself. It seems to me that he means that if the safety factors that we mentioned above stem from a complete disdain for the meaning and importance of Yom Kippur, then one should not follow the doctor's instructions. In other words, the medical opinion must be "pure" and objective; if it includes a personal view about the importance of Yom Kippur, it cannot be relied upon.

I was once involved in a case where a question arose regarding a pregnant woman who was suffering from gestational diabetes, whether or not she should fast on Yom Kippur. When the woman turned to her doctor (who was undoubtedly a renowned specialist in high-risk pregnancies) for advice about fasting, the doctor replied with a tone of disdain: "Oh, you are one of those who do things like that?!" I told the woman that, in my humble opinion, it is impossible to rely on the opinion of such a doctor regarding the necessity of eating on Yom Kippur; at my request, Rabbi Dr. Mordechai Halperin agreed to review the woman's pregnancy monitoring card, and to be her guide regarding eating on Yom Kippur.[5]

Another facet of this issue was emphasized by the Chief Rabbi of Israel and head of Yeshivat Merkaz HaRav, Rabbi Avraham Shapira. In an article dealing with the painful and sensitive issue of handing over parts of the Land of Israel in the framework of peace agreements, Rabbi Shapira addressed the professional security opinion regarding the matter:

On the other hand, it is clear that there is nevertheless a law of pikuach nefesh that sets aside war, and the examination of this pikuach nefesh is like the examination of any pikuach nefesh that is based on the opinion of experts in the matter, namely, the commanders who are experts in military and war matters. Just as if a doctor says that according to accepted and known medical science there is no reasonable chance for the patient to live if he does not eat a forbidden food, and based on this we permit him to eat, so too if expert generals voice their professional opinion about fighting over a particular area, that from a military point of view there is no reasonable chance that we will be able to hold onto it, then the law re-emerges that we are not to risk lives for that… 

In the matter at hand, if the expert commanders were to say that from their professional point of view, they see no chance of succeeding in holding on to the territories of the Land of Israel, and any war over them is doomed from the outset because of the nature of the territory, the strength of the enemy, or superiority in men and weapons, and from a military point of view, there would be an unnecessary campaign of bloodshed – in such a case, the problem of pikuach nefesh arises… 

But what is the situation? The argument is voiced that there is a political risk: the world powers are opposed, the media are opposed, the natural growth of the Arab population, and the like. These reasons do not serve at all as a reason for canceling a mitzva…

Medical calculations in a situation of pikuach nefesh are a natural objective calculation: the human body, a particular illness, a particular medication – all of these are natural considerations that do not involve the doctor's personal view. Likewise, military calculation: the lay of the land, the power of fire, manpower – this too is a natural calculation to a certain extent that does not depend on a particular view of the commander. On the other hand, political calculation is only guesswork; logical perhaps, but only guesswork. It may be this way and it may be that way. (Hachzarat Shitchei Eretz Israel, in Morasha, vol. IX, 5735)

Without going into the political issue, of course, Rabbi Shapira notes the fundamental distinction that we presented above: the position of an "expert" in determining a situation of pikuach nefesh must be based on professional facts, and on them alone. Once other considerations enter his decision-making process, it is impossible to regard his words as expressing an absolute professional position, and sometimes it may not even be possible to regard the situation as one of "uncertain pikuach nefesh."

The Obligation to Obey Medical Instructions

The two reservations that we saw in the Bi'ur Halakha are significant, but they do not in any way detract from the basic halakha established by Chazal, according to which the professional experts on the matter are the ones who determine what constitutes a danger.

A key implication of this is the obligation to obey medical instructions, and the prohibition to be more stringent about Shabbat or Yom Kippur observance or the like. This important matter, and the sources in its regard, were already mentioned in the introductory shiur that dealt with the polemic with the non-believers about pikuach nefesh, and the prohibition to be "foolishly pious" and stringent in a situation of pikuach nefesh.

During the Corona epidemic (mainly in the years 5780-5781), this fundamental principle was put to the test more than once. Broad sectors of the population wished to hear "the Torah perspective" with regard to the various guidelines issued by expert doctors involved in public health.[6] In my humble opinion, the halakha in this matter is clear and simple, as we have explained: the professional experts are the authorities who determine how one is to protect himself against the danger, and there is a halakhic obligation to obey their instructions.[7]

Conclusion

Halakhic decisors, as well as doctors, sometimes feel a lack of clarity on the subject with which we have been dealing. How many times has it happened to me that I was approached by a person who consulted with a doctor about fasting on Yom Kippur, and the doctor answered: "Ask a rabbi"! On the other hand, it has often happened that people approached me with these questions and I replied that I could not answer them, and suggested that they consult a doctor.

Every year before Yom Kippur, Rabbi Asher Weiss hosts a gathering of doctors and rabbis, which is dedicated to questions of halakha and medicine in preparation for the fast. One year, he dedicated his opening remarks to our issue and clarified the importance of relying on a professional medical opinion, making a clear distinction between the role of the rabbi and the role of the doctor. But despite his opening remarks, during the conference itself, when questions were addressed to the rabbi and to the doctors sitting next to him, sometimes the doctor answered in the style of "drink in small amounts, less than the shiur," while the rabbi replied in the style of "it depends on kidney function." That is to say, there is sometimes a thin line between the halakhic question and the medical opinion, and great wisdom is required to be precise both with respect to the halakha and with respect to medicine, and especially to ensure maximum caution against any danger or possible danger.

(Translated by David Strauss)