070204P - THE LEGAL AND ETHICAL BASIS OF MEDICAL PRACTICE

Paper presented by Dr Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard) DrPH (Harvard) Professor of Epidemiology and Islamic Medicine at Universiti Brunei and Visiting Professor of Epidemiology at Universiti Malaya at a Workshop on Use of Ijtihad Maqasidi for Contemporary Ethico-Legal Problems in Medicine organized by the Fiqh Academy of India at Hyderabad 03-04 February 2007.

ABSTRACT

The paper starts by an overview of the Islamic Law covering its basic paradigms, concepts, universal applicability, and the challenges and opportunities before it. It then discusses the sources of the Law divided into primary (Qur’an and sunnah), secondary based on the text (qiyaas & ijma) and secondary based on reasoning (istishaab, istirsaal,& istihsaan). It then discusses purposes of the Law, maqasid al shari’at, as an approach needed for solving contemporary ethico-legal problems. Also discussed are tools of legal reasoning in the form of Principles of the Law, qawa’id al shari’at, and regulations, dhawaabit al shari’at. The paper then explores the application of maqasid al shari’at and qawa’id al shari’at in laying down the legal and ethical basis for modern medical practice. Using the Islamic ethical and legal basis, the paper discusses the following issues in medicine: regulations of medical and surgical procedures; physician conduct; regulations about professional misconduct; physician etiquette, adab al tabiib, with the patient and the family, with the dying, with the healthcare team, and in research on humans and animals.

1.0  OVERVIEW OF THE LAW

1.1 THE LAW IN PERSPECTIVE

Islamic law is the basis for Islamic culture, civilization, and societal institutions. Islamic law is complete and comprehensive. It serves the best interests of humans. It can accommodate new challenges and can grow. Islamic law is a viable system that has not been given its due role in shaping Muslim societies. Knowledge of the Law may be individually obligatory, fardh ain; communally obligatory, fardh kifayat, and recommended, manduub. Law is revealed and cannot be derived from rational reasoning alone. Most legal rulings can be understood logically.

1.2 DEVELOPMENT OF THE LAW

Law of previous prophets in incorporated in the Qur’an. Pre-Islamic customs and practices were either rejected or were Islamized. There was relatively little legislation in the Makkan period. Most legislation was in the Madina period to serve the needs of a new multi-ethnic and multi-religious community in Madina. The khulafau al rashidiin were jurists and mujtahids. Compilation of the Law and hadith started in the Omayyad era and continued in the abassid era however jurists were marginalized when they disagreed with rulers. Decline started in the latter abassid period. The Osmanli published the landmark majjalat al ahkaam al adliyyat. Colonial and post-colonial rulers marginalized shari’at or tried to abolish it. There is now a movement to revive the shari’at in its entirety. The 4 leaders of the schools of law were Abu Hanifa bin Nu'umaan (d. 150H), Malik bin Anas (d. 179H), Muhammad Ibn Idris al Shafi (d. 204H), and Ahmad Ibn Muhammad Ibn Hanbal (d. 241H). Each school has a definable consistency in legal rulings that reflects a common set of principles. There is more than 50% agreement among the different schools. The differences that exist are due to consistent differences in the methodology of extraction of legal rulings. Differences also exist within each school.

1.3 BASIC CONCEPTS, mafahim asasiyyat

Fiqh is the academic discipline that studies the Law or the knowledge of the law, jurisprudence. The Law is general, comprehensiveness, religiously motivated, and a mercy. The order of priorities in the Law is necessities, dharurat; needs, haajiyat; and embellishments, tahsinat. The Law has duality: private & public, fixed & and variable/flexible; formal and informal. The variable Law is dynamic growing as solutions are sought for new challenges and problems. Usul al fiqh is the methodology of the law. Siyasah shar'iyat is administration of justice by the executive according to the law. Huduud are fixed penalties by Allah. Ta'azir are discretionary punishment by the ruler/judge. Allah is the Law-giver. Hukm is Allah's word relating to actions of individuals. Hukm taklifi can be wajib, manduub, haram, makruuh, mubaah, and aziimat & rukhsah. Hukm wadhai is reason, sabab; condition, sharat; or prohibitor, mani’u. Hukm takhyiri provides a choice in which undertaking an act and leaving it are equivalent. Mahkuum alaihi is the individual who is obliged to take action, al mukallaf. Validity of obligation, sihat al taklif, is based on intellectual competence, aql, which is the ability to understand the obligation. Types of rights are: haqq al llaah, haqq al ‘ibaad, and haqq al laah wa al 'abd. Legal rulings must be evidence-based either naql/nass or aql/ra'ay. Bid'at is negative innovation in religion (aqidat and ‘ibadat). Ijtihad is defined technically as maximum effort to discover legal rulings by extraction from the sources. Taqlid is accepting a proposition without looking at the evidence. The original position is to condemn taqlid. However those who cannot consult the original sources directly can rely on the knowledgeable.

1.4 UNIVERSAL APPLICABILITY OF THE SHARI’AT

Islam and its Law are suitable for all places and all times due to its conformity to basic human nature, satisfaction of human interests, ease of application, and flexibility. There is in-built flexibility of the fixed part and adaptive flexibility of the variable part. Modernism defined as scientism, rationalism, and empiricism is not an intellectual challenge to the shari’at because both fiqh and usul al fiqh very rational, evidence-based, and systematic sciences that employ logic and reason in most of their conclusions.

1.5 THE SHARI’AT IN THE WORLD TODAY

Shari’at in West Asia and North Africa - Sharia in Sub-Saharan Africa - Shari’at in Central and South Asia - Shari’at in South East Asia - Shari’at in Other Parts of the World

2.0 SOURCES OF THE LAW, masadir al shariat

2.1 QUR’AN AS A PRIMARY SOURCE OF LAW

The Qur'an is 'Allah’s words revealed to Muhammad (PBUH) in Arabic, transmitted to us in continuity, written in the mashaf, whose recitation is worship, commencing with surat al fatihat and ending with surat al nas. Verses of the Qur’an were revealed adhoc each associated with sabab al nuzuul. It was memorized and also written down immediately. Abubakar collected the written records and Othman issued one official version in the Quraishi dialect that is used all over the world. The Qur’an is practical, rational, and miraculous. Its 3 themes are aqidat, spiritual refinement, and practical guidance. Legal rulings, ayat al ahkaam, are a minority of its more than 6000 verses being distributed munakahaat 70, mu'amalat 70, jinayaat 30, iqtisaad 10 verses, qadha 13 verses, government 10 verses, and international law 25 verses. The Qur’an is comprehensive and complete but deals with issues in a generic and not specific way. Its verses are muhkamat or mutashabihat. It challenges the intellect, does not indoctrinate, and gives room for opposing views. It is divided into 114 surats. Each surat starts with the basmalah except surat al baraa. It is divided into 30 juz’us each divided into 2 hizbs. Rub'u or thumun are subdivisions of the hizb. The Makkan verses, dealing with aqidat, are short, poetic, and powerful. Madinan verses are longer dealing with details of societal organization. The prophet read the Qur’an in 7 different ways, The Qur’an can be recited as tartiil or as tajwid. As a source of legislation the Qur’an provides general foundations and principles. Qur'anic evidence for legal rulings is either qatui, or dhanni. The Qur'an is the primary source of law. All other recognized sources are secondary to the Qur'an and are validated by it.

2.2 SUNNAT AS A PRIMARY SOURCE OF LAW

Sunnat, a subgroup of hadith and part of wahy, is defined as words, actions, and tacit agreement of the Prophet. A hadith consists of a sanad, and matn. It can be hadith nabawi or hadith qudsi. Writing of hadith started late. Hadith collections are classified as sihaah, sunan, masanid, and muwatta’at. Hadith is described as mutawatir if narrated by many, mash'hur if reported by at least 2, and aahaad if reported by only 1 sahabi. It be tashri'i if legislative or ghayr tashri' if it is not. The grades of hadith authenticity in descending order are: sahiih, jayyid, and hasan. Muttafaq ‘alayhi is reported by both Bukhari and Muslim. Musnad has a chain of narrators to the prophet. Muttasil has an unbroken chain of narrators. The sanad stops at a sahabi in mawquf and at a tabi’e in a marfu’u hadith. In mursal the tabi’e reports directly from the prophet. Munqati’u has an incomplete sanad. Dha’if lacks the attributes of the sahiih and hasan. Sunnat can affirm, explain, or elaborate the Qur'an or bring up matters not mentioned in the Qur’an. Obedience of the prophet implies following his sunnat. The sunnat comes second to the Qur'an as a source of law. The daliil of the sunnat may be definitive, qatai, or probable, dhanni. The sunnat is interpreted in the light of general principles of the Qur'an, the social situation in the prophetic era, and the Arabic language.

2.3 IJMA and QIYAAS AS SECONDARY SOURCES OF LAW

Ijma is agreement of all mujtahids existing at one time on a particular legal ruling based on nass. It can be ijma sariih or ijma sukuuti. Qiyas is use of a ruling of one matter for another matter when the two share the same illat.

2.4 OTHER SECONDARY SOURCES OF LAW: shara’u man qablama, qawl al sahabi, ‘aadat, dhari’at

Pre-Islamic laws, shara'u man qablana, were either abrogated or confirmed by the Qur’an. The word of the companion, qawl al sahabi, is a source of law under specified conditions. Custom or precedent, ‘aadat or 'urf, is a source of law if it does not contradict nass, there is ijma on it, and is in the public interest, and closes the door to evil. Istishaab is continuation of an existing ruling until there is evidence to the contrary. Istihsaan is preference for one qiyaas by a mujtahid. Istislaah is assuring a benefit or preventing a harm used in mu’amalat but not ‘ibadat. Maslahat mursalat is public interest based on ra’ay when there is no nass. Sadd al dhari'at is prohibition of an act that is otherwise mubaah because it has a high probability of leading to haram.

2.5 METHODOLOGY OF EXTRACTING LEGAL RULINGS, tariqat istinbat al ahkaam, tariqat al istidlal

Nass can be muhakkam or mutashabih. The muhakkam can be ‘aam, khaas (amr and nahy), or mushtarak. Amr can be wajib, manduub, or mubaah. Nahy can be haram or makruh. Nahy implies both batil and fasid in ibadat. In mu’amalat a fasid transactions is irregular but not batil and has some legal effect. Legal reasoning uses the tools of agreement, ashbaahu, difference, furuuqaat, or exceptions, nadhair, Conflict of evidences is apparent and not real and is due to different views of mujtahidiin. It is resolved by the tools of nasakh, tarjih, or tawfiq. Nasakh is abrogation of one daliil. by another. Tarjiih is an intellectual effort to compare two or more rulings and select the best of them on the basis of strength of daliil. Tawfiq is combining two contradictory daliil to give one ruling.

3.0 PURPOSES OF THE LAW, maqasid al shariat

3.1 INTRODUCTION

The aim of ijtihad was to discover the purpose of the lawgiver in order to reach a hukm shar’i. Ijtihad in the closed part of the Law is referred to the nass. Ijtihad in the open or flexible part of the law is referred to the maqasid. The law was revealed to fulfill specific underlying purposes and for the benefit and in the interests of humans. Without the Law humans cannot use their reasoning to discover their true interests and establish the equilibrium between mafasid and masalih since these are relative and not absolute. The maqasid are permanent, consistent, derived form the nass by induction and are therefore definitive. They ensure that the Law is unchanged or violated. They deal with whole and not the parts. Maqasid al shariu must in ideal situations correspond with maqasid al mukallaf. Maqasid al shar’e can be primary or secondary. The primary maqasid can be private or public; they can relate to rights of Allah or rights of humans. The 1^st to 14^th centuries witnessed relatively little change in the ummah in the physical sense. However in the 15^th century, technological changes have created new and complex problems that require a bird's eye view for solution. It is the maqasid that can provide this bird's eye view and thus lead to appropriate solutions.

3.2 PRIMARY PURPOSES OF THE LAW GIVER, maqasid al shariu ibtida'an

The primary purposes of the lawgiver are necessities, dharuraat; needs, hajiyat; refinements, tahsinaat; and complementaries, mukammilaat. Dharuraat ensure human interests on earth and in heaven. Normal human life is impossible without them. Haajiyat allow proper functioning of life relieving difficulties arise in implementing dharuraat. Tahsinaat assure human dignity and makarim al akhlaq  Mukammilaat are complementary purposes The 5 necessities that are generally referred to as maqasid al shariat arranged here in order of importance: religion, diin; life, nafs, the mind, 'aql; progeny, nasl; and property, maal. They are permanent and are unchangeable. Hifdh al din is ‘aqidat, ‘ibadat and supporting functions of ‘aadaat, munakahaat, and mu’amalat. Laws that forbid spread of evil ideas and practices also protect the religion. Hifdh al nafs is protection of the body from harm and involves ‘aadaat, muamalaat, and jinayat and could take the forms of quarantines and isolation in epidemics, qisas, and liability for medical negligence. Hifdh al nasl is assured by marriage, child-birth within the marital bond, and proper child upbringing. Hifdh al ‘aql is assured by normal psychosocial relations as well as prohibition of alcohol and drugs. Hifdh al mal is assured by property rights and prohibition of stealing and embezzlement.

3.3 SECONDARY PURPOSES OF THE LAW GIVER, maqasid al shariu al taabi'at

The secondary purposes of the law giver relate to interpretation and clarification of the Law, injunctions as they relate to performance capacity in normal and difficult circumstances, and compliance with the Law,

3.4 PURPOSES OF THE HUMAN, maqasid al mukallaf

Purposes of the human refer to intentions, validity of acts, the effort to comply, interests, rights and obligations. Acts are judged by the intention behind them. The intention of the human must correspond to the intention of the law-giver. Human and divine intentions may correspond by design or by chance. A human may intent a bad act that turns out to be good. Validity of human acts is judged solely by their conformity to the purposes of the law-giver. An act contrary to the intention of the law giver is still invalid even if the intention was good. The human is rewarded for the effort to comply even if the effort is not perfect or the aim is not reached. Fulfilling the purposes of the law-giver assures satisfaction of human interests, masalih; there is no real contradiction between maqasid and masalih. The human is free to give up his rights but cannot give up or pardon situations that involve Allah’s rights.  Legal tricks, hiyal, defeat the purpose of the Law.

3.5 APPLICATIONS

There are rules for resolving conflicts between and among various maqasid. The dharurat have priority over the hajiyaat which in turn have priority over tahsinaat. Among the dharurat, the stronger purpose prevails; the order of strength being diin, nafs, nasl, aql, and maal.  Public interest has priority over private interest. The definitive, qatai, has priority over the probable, dhanni. Rights of Allah have priority over rights of the humans. The maqasid are the basis for siyash shar'iyat. It is siyasah ‘adilat if it relies on the mujtahid. It is siyasah dhaalimah if it does not follow the Law. The maqasid define clear objectives for the community and allow it to grow as a living balanced organism. The economic system must follow the priorities of the maqasid.

4.0 REGULATIONS OF THE LAW, dhawaabit al shariat

4.1 EXAMPLES OF REGULATIONS OF FIQH, dhawabit fiqhiyyat

In case of doubts about a substance, it is assumed to be clean. Any water whose characteristics have not been altered is considered clean. Anything than can be eaten or drunk can be sold. Anything that can be sold can be mortgaged. Anything that can be sold can be donated. Any kaffaarat due to ma'asiyat must be paid immediately.

5.0 PRINCIPLES OF THE LAW, qawaid al shariat

5.1 INTRODUCTION

Qaidat is a general principle applicable to the specifics and is of 3 types: qawaid usuliyat, qawaid fiqhiyat, and dhawabit fiqhiyyat. Qawa’id fiqhiyyat are legal principles that embrace general legal rulings from several chapters of the law dealing with a subject matter. Qawa’id usuliyyat are general principles applied to specific situations in usul al fiqh dealing with the daliil and not the hukm in any branch of fiqh. Dhawaabit fiqhiyyat are general principles applied to specific situations in one chapter of the law being of a narrower scope than qawa’id fiqhiyyat. Kulliyaat fiqhiyyat are general axioms (either qawa’id fiqhiyyat or dhawaabit fiqhiyyat) beginning 'all' with hardly any exceptions to them. Motivation for these 3 principles is from the Qur’an and sunnat that are mainly brief, concise, and precise statements of principles without detailed elaboration. The principles simplify the Law, facilitate the extraction of legal rulings, and are easy to memorize and remember. Principles derived directly from the nass are recognized as daliil. Those derived from reasoning facilitate legal reasoning but cannot on their own be the daliil on which the ruling is based.

5.2 EXAMPLES OF PRINCIPLES OF USUL AL FIQH, qawa’id usuliyyat

The default original position is permissibility. Haram is what was prohibited by the Qur’an and sunnat. Nothing can be declared haram if there is uncertainty. If no prohibition is known about a matter then it is considered mubaah.. Any amr requires immediate execution unless there is evidence for delaying. Amr means nahy for all its opposites. Any orders to the prophet cover his followers. Any nahy covers all people. There is no fardh unless there is certainty. Anything needed to accomplish the waajib is itself waajib.

5.3 PRINCIPLES OF FIQH, qawaid fiqhiyyat

Five major principles, al qawaid al kulliyat al khamsat, are unanimously recognized as the pillars of the law: Intention, qasd; certainty, yaqeen; injury, dharar, difficulty; mashaqqat and custom or precedent, urf. Each is a group of legal rulings or axioms that share a common derivation by qiyaas or are derived from the Qur’am, sunnat, or writings of jurists. The principle of intention states that each action is judged by the intention behind it. Reward is based on the intention. What matters is the intention and not the letter of the Law. Means are judged with the same criteria as the intentions. If the intention is wrong the means is also wrong. The principle of certainty states that a certainty cannot be changed by doubt. Existing assertions continue until compelling evidence changes them. All acts are permissible unless there is evidence to the contrary. Declaration of original motive takes precedence over the de facto.  The principle of injury states that injury should be relieved or prevented as much as is possible but cannot be relieved an injury of the same degree. Prevention of an injury takes precedence over pursuit of a benefit of equal worth. Prevention of haram has priority over pursuit of halaal. The lesser of two actions of equal harm harms is selected. A lesser harm is committed in order to prevent a bigger one. An individual could sustain harm in the public interest. The principle of hardship states that difficulty calls forth ease and mitigates easing of rules and obligations. Humans are not obliged beyond their capacity. Necessity, dharuurat, legalizes the prohibited. The principle of custom/precedent states that custom or precedent is a legal ruling and is a source of law unless contradicted specifically by text.

5.4 OTHER PRINCIPLES OF FIQH

Other principles of fiqh are axioms, kulliyaat al fiqh; principles mentioned directly in hadith; principles from the books of law; and qawaid usuliyat that are qawaid fiqhiyyat, qawaid usuliyat majriya al qawa’id fiqhiyyat. The following are examples of axioms: any ta'at reached through ma’asiyat should not be undertaken, any non-disclosure that could lead to dispute nullifies the contract, ignorance that could be relieved is not a defence, and any ma’asiyat without a fixed hadd is punishable by ta’azir. The following principles are mentioned directly in hadith: no harm to self and others and any innovation in religion is rejected. The following are examples of principles from the books of law: it is recommended to get out of differences, the majority has the rights of the whole, and a legal ruling based on ‘illat is void if the the ‘illat disappears. The following are examples of qawaid usuliyat that are qawaid fiqhiyyat: An ijtihad is not voided by a similar ijtihad, the default position is to leave things as they are, and no word is attributed to a silent person.

6.0 PURPOSES OF MEDICINE

6.1 PROTECTION OF DDIIN

Protection of ddiin is essentially involves ibadat in the wide sense that every human endeavor is a form of ibadat. Thus medical treatment makes a direct contribution to ibadat by protecting and promoting good health so that the worshipper will have the energy to undertake all the responsibilities of ibadat. The principal forms of physical ibadat are the 4 pillars of Islam: prayer, salat; fasting, siyaam; pilgrimage, hajj, and jihad. A sick or a weak body can perform none of them properly. Balanced mental health is necessary for understanding aqidat and avoiding false ideas that violate aqidat. Thus medical treatment of mental disorders thus contributes to ibadat. General public health has a special relation to jihad. If the general health of a population is not satisfactory, there will not enough youths to be recruited into the armed forces. There will also not be enough healthy workers to provide the material and logistics required for successful prosecution of war. If the obligation of jihad is not fulfilled, the Muslim community will be defeated and subjugated by others who will not give Muslims freedom to practice religion.

6.2 PROTECTION OF LIFE, hifdh al nafs

The primary purpose of medicine is to fulfill the second purpose of the shari’at, the preservation of life, hifdh al nafs. Medicine cannot prevent or postpone death since such matters are in the hands of Allah alone. It however tries to maintain as high a quality of life until the appointed time of death arrives. Medicine contributes to the preservation and continuation of life by making sure that the nutritional functions are well maintained. Medical knowledge is used in the prevention of disease that impairs human health. Disease treatment and rehabilitation lead to better quality health.

PROTECTION OF PROGENY, hifdh al nasl

Medicine contributes to the fulfillment of this function by making sure that children are cared for well so that they grow into healthy adults who can bear children. Treatment of infertility ensures successful child bearing. The care for the pregnant woman, perinatal medicine, and pediatric medicine all ensure that children are born and grow healthy. Intra-partum care, infant and child care ensure survival of healthy children.

6.3 PROTECTION OF THE MIND, hifdh al ‘aql

Medical treatment plays a very important role in protection of the mind. Treatment of physical illnesses removes stress that affects the mental state. Treatment of neuroses and psychoses restores intellectual and emotional functions. Medical treatment of alcohol and drug abuse prevents deterioration of the intellect.

  

6.4 PROTECTION OF WEALTH, hifdh al mal

The wealth of any community depends on the productive activities of its healthy citizens. Medicine contributes to wealth generation by prevention of disease, promotion of health, and treatment of any diseases and their sequelae. Communities with general poor health are less productive than a healthy vibrant community. The principles of protection of life and protection of wealth may conflict in cases of terminal illness. Care for the terminally ill consumes a lot of resources that could have been used to treat other persons with treatable conditions. The question may be posed whether the effort to protect life is worth the cost. The issue of opportunity cost and equitable resource distribution also arises.

7.0 PRINCIPLES OF MEDICINE

7.1 THE PRINCIPLE OF INTENTION

The Principle of intention comprises several sub principles. The sub principle that each action is judged by the intention behind it calls upon the physician to consult his inner conscience and make sure that his actions, seen or not seen, are based on good intentions. The sub principle ‘what matters is the intention and not the letter of the law’ rejects the wrong use of data to justify wrong or immoral actions. The sub principle that means are judged with the same criteria as the intentions implies that no useful medical purpose should be achieved by using immoral methods.

7.2 THE PRINCIPLE OF CERTAINTY, qaidat al yaqeen

Medical diagnosis does cannot reach the legal standard of yaqeen. Treatment decisions are best on a balance of probabilities. Each diagnosis is treated as a working diagnosis that is changed and refined as new information emerges. This provides for stability and a situation of quasi-certainty without which practical procedures will be taken reluctantly and inefficiently. Existing assertions should continue in force until there is compelling evidence to change them. Established medical procedures and protocols are treated as customs or precedents. What has been accepted as customary over a long time is not considered harmful unless there is evidence to the contrary. All medical procedures are considered permissible unless there is evidence to prove their prohibition. Exceptions to this rule are conditions related to the sexual and reproductive functions. All matters related to the sexual function are presumed forbidden unless there is evidence to prove permissibility.

7.3 THE PRINCIPLE OF INJURY, qaidat al dharar

Medical intervention is justified on the basic principle is that injury, if it occurs, should be relieved. An injury should not be relieved by a medical procedure that leads to an injury of the same magnitude as a side effect. In a situation in which the proposed medical intervention has side effects, we follow the principle that prevention of a harm has priority over pursuit of a benefit of equal worth. If the benefit has far more importance and worth than the harm, then the pursuit of the benefit has priority. Physicians sometimes are confronted with medical interventions that are double edged; they have both prohibited and permitted effects. The guidance of the Law is that the prohibited has priority of recognition over the permitted if the two occur together and a choice has to be made. If confronted with 2 medical situations both of which are harmful and there is no way but to choose one of them, the lesser harm is committed. A lesser harm is committed in order to prevent a bigger harm. In the same way medical interventions that in the public interest have priority over consideration of the individual interest. The individual may have to sustain a harm in order to protect public interest. In the course of combating communicable diseases, the state cannot infringe the rights of the public unless there is a public benefit to be achieved. In many situations, the line between benefit and injury is so fine that salat al istikharat is needed to reach a solution since no empirical methods can be used.

7.4 PRINCIPLE OF HARDSHIP, qaidat al mashaqqat

Medical interventions that would otherwise be prohibited actions are permitted under the principle of hardship if there is a necessity. Necessity legalizes the prohibited. In the medical setting a hardship is defined as any condition that will seriously impair physical and mental health if not relieved promptly. Hardship mitigates easing of the sharia rules and obligations. Committing the otherwise prohibited action should not extend beyond the limits needed to preserve the Purpose of the Law that is the basis for the legalization. Necessity however does not permanently abrogate the patient’s rights that must be restored or recompensed in due course; necessity only legalizes temporary violation of rights. The temporary legalization of prohibited medical action ends with the end of the necessity that justified it in the first place. This can be stated in al alternative way if the obstacle ends, enforcement of the prohibited resumes/ It is illegal to get out of a difficulty by delegating to someone else to undertake a harmful act.

7.5 THE PRINCIPLE OF CUSTOM or PRECEDENT, qaidat al urf

The standard of medical care is defined by custom. The basic principle is that custom or precedent has legal force. What is considered customary is what is uniform, widespread, and predominant and not rare. The customary must also be old and not a recent phenomenon to give chance for a medical consensus to be formed.

8.0 REGULATIONS OF MEDICAL PROCEDURES, dhawaabit al tibaabat

8.1 EXAMINATION AND INVESTIGATION

Patient consent is necessary for history taking otherwise it is considered trespassing on privacy and spying. History taking provides an opportunity to discuss diseases of the heart that underlie physical disease. It is an opportunity for taubat and dawa. It is also opportunity to advise on legal matters such as foster relations and iddat. The physician is not obliged to report criminal information to the authorities unless there is demonstrable immediate public interest and necessity. Physical clinical examination also requires infomed consent. A patient can only be examined against his or her consent only if there is a necessity relating to the life of the patient or to public interest such as criminal investigation. Mental patients can are not legally competent to give consent; the necessary consent could be obtained from a guardian, wali. Examination by a caregiver of the opposite gender requires special consideration. It is always preferable that physicians of the same gender carry out the examination. A physician of the opposite gender can be used only if a situation of necessity arises. A chaperone must be present. Examination limited to what is necessary. The results of laboratory investigations have the same requirements for confidentiality as history and clinical examination. The results of radiological investigations are confidential. Images that show the shape of the body parts can be considered showing awrat and should not be seen except by authorized people only and for specific purposes. Invasive investigations carry a higher risk to the patient; their benefits should be carefully weighed against the benefits. These investigations should be carried out only if there is a clear necessity, dharuurat.

8.2 MEDICAL TREATMENT

Medical treatment may involve destruction (antibiotics, cytotoxics, anti-metabolites, antagonists, antitoxins, and detoxification), replacement (hormones, fluids, electrolytes), biological modification & modulation, psycho-active therapy, and supportive treatment (diet, rest, analgesia etc). It is prohibited to use haram materials and najasat as treatment. What is prohibited as food or drink is also prohibited as medicine. Exceptions are made in cases of dharuurat. Medicine taken orally does not nullify wudhu. Any medicine that is taken but is not swallowed and is vomited out is considered like vomitus. Medicine given per rectum nullifies wudhu. Subcutaneous or intravenous or intramuscular injections do not nullify wudhu unless there is extensive external bleeding. Any medicine taken orally or rectally or any insertion of a scope will nullify saum.

8.3 SURGICAL TREATMENT

Permitted surgical procedures include resection, restorative/reconstructive surgery, transplantation, blood transfusion, anesthesia, and critical care. Transfusion of whole blood or blood components is widely accepted and raises few legal or ethical issues. Blood donation is analogous to organ donation by a living donor. Transfused blood is not considered filth, najasat, because it is not spilled blood. Blood transfusion is allowed on the basis of dharuurat. There is no problem in blood donation between Muslims and non-Muslims because they share human brotherhood. There is no problem in blood transfusion between a man and a woman. Blood transfusion does not abrogate the wudhu of the donor or the recipient. Sale of blood is permitted using the analogy of sale of milk by wet nurse who is paid for her services. Attempts must be made to minimize inappropriate mixing of male and female health care personnel in a small confined space of the operating theater. In emergency treatment/critical care, financial considerations complicate the picture when destitute patients who cannot pay present at the emergency room.

8.4 OTHER TREATMENTS

Dua, ruqyah, tawakkul, and raja are spiritual treatments. Immunization and other preventive measures are treatment before disease and are not denial of qadar. It is permitted to slaughter on behalf of the sick taqarruban ila al llaah and to give the poor. It is prohibited to slaughter for the jinn and the shaitan. Various traditional, alternative, and complementary therapies are permitted if they are of benefit. Other permitted treatment modalities are irradiation, immunotherapy, and genetic therapy.

9.0 REGULATIONS OF PHYSICIAN CONDUCT, dhawaabit al tabiib

9.1 VALUES, COMPETENCE, AND RESPONSIBILITY

The physician-patient is based on brotherhood. The physician must maintain the highest standards of justice. He should also follow the following guidelines from the sunnat: good intentions, avoiding doubtful things, leaving alone matters that do not concern him, loving for others, causing no harm, giving sincere advice, avoiding the prohibited, doing the enjoined acts, , renouncing greed, avoiding sterile arguments, respect for life, basing decisions and actions on evidence, following the dictates of conscience, righteous acts, quality work, guarding the tongue, avoiding anger and rage, respecting transgressing Allah’s limits, consciousness of Allah in all circumstances, performing good acts to wipe out bad ones, treating people with the best of manners, restraint and modesty, maintaining objectivity, seeking help from Allah, and avoiding oppression or transgression against others. The physician should be professionally competent (itiqan & ihsaan), balanced (tawazun), have responsibility (amanat) and accountability (muhasabat). He must work for the benefit of the patients and the community (maslahat).

9.2 MEDICAL DECISIONS

No medical procedures can be carried out without informed consent of the patient except in cases of legal incompetence. The patient has the purest intentions in decisions in the best interests of his or her life. Others may have bias their decision-making. The patient must be free and capable of giving informed consent. Informed consent requires disclosure by the physician, understanding by the patient, voluntariness of the decision, legal competence of the patient, recommendation of the physician on the best course of action, decision by the patient, and authorization by the patient to carry out the procedures. The patient is free to male decisions regarding choice of physicians and choice of treatments. Consent can be by proxy in the form of the patient delegating decision making or by means of a living will.

Valid consent must be voluntary, informed, and by a person with capacity to consent. It involves explaining the procedure contemplated, making sure the patient understands, and offering the patient a choice. Consent is limited to what was explained to the patient except in an emergency. Refusal to consent must be an informed refusal (patient understands what he is doing). Refusal to consent by a competent adult even if irrational is conclusive and treatment can only be given by permission of the court. Doubts about consent are resolved in favor of preserving life. Spouses and family members do not have an automatic right to consent. A spouse cannot overrule the patient’s choice. Advance directives, proxy informed consent by the family are made for the unconscious terminal patient on withholding or withdrawal of treatment. Physician assisted suicide, active euthanasia, and voluntary euthanasia are illegal. A do not resuscitate order (DNR) by a physician could create legal complications. The living will has the following advantages: (a) reassuring the patient that terminal care will be carried out as he or she desires (b) providing guidance and legal protection and thus relieving the physicians of the burden of decision making and legal liabilities (c) relieving the family of the mental stress involved in making decisions about terminal care. The disadvantage of a living will is that it may not anticipate all developments of the future thus limiting the options available to the physicians and the family. The device of the power of attorney can be used instead of the living will or advance directive. Decision by a proxy can work in two ways: (a) decide what the patient would have decided if able (b) decide in the best interests of the patient. Informed consent is still required for physicians in special practices such as a ship’s doctor, prison doctor, doctors in armed forces. Police surgeons may have to carry out examinations on suspects without informed consent.

CONSENT OF THE INCOMPETENT

Competent children can consent to treatment but cannot refuse treatment. The consent of one parent is sufficient if the 2 disagree. Parental choice takes precedence over the child’s choice. Courts can overrule parents. Life-saving treatment of minors is given even if parents refuse. Parental choice is final in therapeutic or non-therapeutic research on children. Mental patients cannot consent to treatment, research, or sterilization because of their intellectual incompetence. They are admitted, detained, and treated voluntarily or involuntarily for their own benefit, in emergencies, for purposes of assessment, if they are a danger to themselves, or on a court order. Suicidal patients tend to refuse treatment because they want to die. Nutrition, hydration, and treatment can be withdrawn in a persistent vegetative state since the chance of recovery is low. There is no moral difference between withholding and withdrawing futile treatment. Labor and delivery are emergencies that require immediate decisions but the woman may not be competent and proxies are used. Forced medical intervention and ceserian section may be ordered in the fetal interest. Birth plans can be treated as an advance directive.

9.3 DISCLOSURE AND TRUTHFULNESS

As part of the professional contract between the physician and the patient, the physician must tell the whole truth. Patients have the right to know the risks and benefits of medical procedure in order for them to make an autonomous informed consent. Deception violates fidelity. If disclosure will cause harm it is not obligatory. Partial disclosure and white or technical lies are permissible under necessity. Disclosure to the family and other professionals is allowed if it is necessary for treatment purposes. Physicians must use their judgment in disclosure of bad news to the patient.

9.4 PRIVACY AND CONFIDENTIALITY

Privacy and confidentiality are often confused. Privacy is the right to make decisions about personal or private matters and blocking access to private information. The patient voluntarily allows the physician access to private information in the trust that it will not be disclosed to others. This confidentiality must be maintained within the confines of the Law even after death of the patient. In routine hospital practice many persons have access to confidential information but all are enjoined to keep such information confidential. Confidentiality includes medical records of any form. The patient should not make unnecessary revelation of negative things about himself or herself. The physician can not disclose confidential information to a third party without the consent of the patient. Information can be released without the consent of the patient for purposes of medical care, for criminal investigations, and in the public interest. Release is not justified without patient consent for the following purposes: education, research, medical audit, employment ofr insurance.

9.5 FIDELITY

The principle of fidelity requires that physicians be faithful to their patients. It includes: acting in faith, fulfilling agreements, maintaining relations, and fiduciary responsibilities (trust and confidence). It is not based on a written contract. Abandoning the patient at any stage of treatment without alternative arrangements is a violation of fidelity. The fidelity obligation may conflict with the obligation to protect third parties by disclosing contagious disease or dangerous behavior of the patient. The physician may find himself in a situation of divided loyalty between the interests of the patient and the interests of the institution. The conflict may be between two patients of the physician such as when maternal and fetal interests conflict. Physicians involved in clinical trials have conflicting dual roles of physicians and investigators.

10.0 REGULATIONS ABOUT PROFESSIONAL MISCONDUCT

10.1 ABUSE OF PROFESSIONAL PRIVILEDGES

Un-ethical research on patients is abuse of professional privileges. Abuse of treatment privileges consists of unnecessary treatment, iatrogenic infection, and allowing or abetting an unlicensed practitioner. Abuse of prescription privileges is manufacturing, possessing, and supplying a controlled drug without a license,  prescription of controlled drugs not following procedures, diverting or giving away controlled substances, dispensing harmful drugs, sale of poisons, and writing prescriptions using secret formulas. Financial fraud may be pharmacy fraud (billing for medicine not supplied), billing fraud (billing for services not performed), equipment fraud (using equipment that is really not needed or using equipment of poorer quality), or supplies fraud. It is also illegal to get financial advantage from prescriptions to be filled by pharmacies owned by the physician. Kick-backs are unethical and illegal. False or inaccurate documentation is a breach of the law and includes issuing a false medical certificate of illness, false death certification, and false injury reports. Court action could be brought against a physician for the following crimes against the person: manslaughter (voluntary & involuntary); euthanasia (active and passive): battery for forced feeding or treatment; criminal liability for patient death; induced non-therapeutic abortion; iatrogenic death; abusive therapy involving torture; intimate therapy; rape and child molestation; and sexual advances to patients or sexual involvement. The physician-patient relation requires that the physician keeps all information about he patient confidential. Breach of confidentiality can be done only in the following situations: court order, statutory duty to report notifiable diseases, statutory duty to report drug use, abortions, births, deaths, accidents at work, disclosure to relatives in the interest of the patient, disclosure in the public interest, sharing information with other health professionals, disclosure for purposes of teaching and research, disclosure for purposes of health management.

10.2 PRIVATE MIS-CONDUCT DEROGATORY TO REPUTATION, kharq al muru’at

Breach of trust is a cause for censure because a physician must be a respected and trusted member of the community. Sexual misbehavior such as zina and liwaat are condemned. Fraudulent procurement of a medical license, sale of medical licenses, and covering an unqualified practitioner indicate bad character. Physicians can abuse their position by abuse of trust (eg harmful or inappropriate personal and sexual relations with patients and their families), abuse of confidence (eg disclosure of secrets), abuse of power/influence (eg undue influence on patients for personal gain), and conflict of interest (when the physician puts personal selfish interests before the interests of the patient). Other forms of misconduct are in-humane behavior such as participation in torture or cruel punishment, abuse of alcohol and drugs, behavior unbecoming, indecent behavior, violence, and conviction for a felony.

10.3 PUBLIC PROFESSIONAL MIS-CONDUCT

Physicians in private practice must adopt good business practices. Halal transactions are praised (Zaid H539). An honest businessman is held in high regard (Tirmidhi K12 B4). Leniency in transactions is encouraged (Bukhari K34 B16). Full disclosure is needed in any transaction (Ibn Majah K12 B45). Measures and scales must be fulfilled (Muwatta K31 H99). Bad business practices are condemned. There is no blessing in immoral earnings (Darimi K20 B60). Selling over another’s sale is prohibited (Bukhari K34 B58). Cheating is condemned (Bukhari K34 B19). Also condemned are financial fraud including criminal breach of trust, riba on bills, fee splitting, bribery (Abudaud K23 B4). Sale of goodwill of a practice is allowed. Also allowed is agreement among partners that they will not set up a rival practice on leaving the partnership. Entering into a compact with pharmacists or laboratories involving fee splitting and unnecessary referrals is not moral. Treatment regimens can not be patented as an intellectual property. Physicians are entitled to a reasonable fee as ajr al tabiib (Bukhari K37 B16). Medical fees cannot be fixed by government because the Prophet refused to fix prices (Abudaud K22 B49).

11. 0 ETIQUETTE WITH PATIENTS and FAMILIES

11.1 BED-SIDE VISITS

The physician-patient interaction is both professional and social. The bedside visit fulfills the brotherhood obligation of visiting the sick. The human relation with the patient comes before the professional technical relation. It is reassurance, psychological and social support, show of fraternal love, and sharing. A psychologically satisfied patient is more likely to be cooperative in taking medication, eating, or drinking. The following are recommended during a visit: greeting the patient, dua for the patient, good encouraging words, asking about the patient’s feelings, doing good/pleasing things for the patient, making the patient happy, and encouraging the patient to be patient, discouraging the patient from wishing for death, nasiihat for the patient, reminding the patient about dhikr. Caregivers should seek permission, idhn, before getting to the patient. They should not engage in secret conversations that do not involve the patient.

11.2 ETIQUETTE OF THE PATIENT

The patient should express gratitude to the caregivers even if there is no physical improvement. Patient complaints should be for drawing attention to problems that need attention and not criticizing caregivers. The patient should be patient because illness is kaffaarat and Allah rewards those who surrender and persevere. The patient should make dua for himself, caregivers, visitors, and others because the dua of the patient has a special position with Allah. When a patient sneezes he should praise Allah and the mouth to avoid spread of infections. It is obligatory for the attendants to respond to the sneezer. The patient should try his best to eat and drink although the appetite may be low. The caregivers can not force the patient to eat. They should try their best to provide the favorite food of the patient. The believing patient should never lose hope from Allah. He should never wish for death. The patient should try his best to avoid anger directed at himself or others. Getting angry is a sign of losing patience.

11.3 ETIQUETTE OF THE CARE-GIVER

The caregiver should respect the rights of the patient regarding advance directives on treatment, privacy, access to information, informed consent, and protection from nosocomial infections. Caregivers must be clean and dress appropriately to look serious, organized and disciplined. They must be cheerful, lenient, merciful, and kind. They must enjoin the good, have good thoughts about the patients, husn al dhann, and avoid evil or obscene words. They must observe the rules of lowering the gaze, ghadh al basar, and khalwat. Caregivers must have an attitude of humbleness, tawadhu'u, They cannot be emotionally-detached in the mistaken impression that they are being professional. They must be loving and empathetic and show mercifulness but the emotional involvement must not go to the extreme of being so engrossed that rational professional judgment is impaired. They must make dua for the patients because qadar can only be changed by dua. They can make ruqya for the patients by reciting the two mu’awadhatain or any other verses of the Qur’an. They must seek permission, isti' dhaan, when approaching or examining patients. Medical care must be professional, competent, and considerate. Medical decisions should consider the balance of benefits and risks. The general position of the Law is to give priority to minimizing risk over maximizing benefit. Any procedures carried out must be explained very well to the patient in advance. The caregiver must never promise cure or improvement. Every action of the caregiver must be preceded by basmalah. Everything should be predicated with the formula inshallah, if Allah wishes. The caregivers must listen to the felt needs and problems of the patients. They should ask about both medical and non-medical problems. Supportive care such as nursing care, cleanliness, physical comfort, nutrition, treatment of fever and pain are as important as the medical procedures themselves and are all what can be offered in terminal illness. Caregivers must reassure the patients not to give up hope. Measures should be taken to prevent nosocomial infections.

11.4 ETIQUETTE OF INTERACTION BETWEEN GENDERS

Both the caregiver and patient must cover awrat as much as possible. However, the rules of covering are relaxed because of the necessity, dharurat, of medical examination and treatment. The benefit, maslahat, of medical care takes precedence over preventing the harm inherent in uncovering awrat. When it is necessary to uncover awrat, no more than what is absolutely necessary should be uncovered. To avoid any doubts, patients of the opposite gender should be examined and treated in the presence of others of the same gender. The caregivers should be sensitive to the psychological stress of patients, including children, when their awrat is uncovered. They should seek permission from the patient before they uncover their awrat. Caregivers who have never been patients may not realize the depth of the embarrassment of being naked in front of others. Medical co-education involves intense interaction between genders: Teacher-student, student-student, and teacher-teacher. Interacting with colleagues of the opposite gender raises special problems. Norms of dress, speaking, and general conduct; class-room etiquette; social interaction; laboratory experiments on fellow students; Clinical skills laboratory: learning clinical skills by examining other students; Operation theatre. Medical personnel of opposite genders should wear gender-specific garments during surgical operations because Islam frowns on any attempt to look like the opposite gender. Shari’at guidelines on interaction with patients of the opposite gender should be followed. Taking history, physical examination, diagnostic procedures, and operations should preferably be by a physician of the same gender. In conditions of necessity a physician of the opposite gender can be used and may have to look at the ‘awrat or touch a patient. The conditions that are accepted as constituting dharuurat are: skills and availability. The preference between a Muslim of opposite gender vs non-Muslim of same gender depends on the local situation.

11.5 DEALING WITH THE FAMILY

Visits by the family fulfill the social obligation of joining the kindred and should be encouraged. The family are honored guests of the hospital with all the shari’at rights of a guest. The caregiver must provide psychological support to family because they are also victims of the illness because they anxious and worried. They need reassurance about the condition of the patient within the limits allowed by the rules of confidentiality. The family can be involved in some aspects of supportive care so that they feel they are helping and are involved. They should however not be allowed to interrupt medical procedures. Caregivers must be careful not to be involved in family conflicts that arise from the stresses of illness.

12.0 ETIQUETTE WITH THE DYING

12.1 COMFORT:

Narcotics are given for severe pain. Drugs are used to allay anxiety and fears. The caregivers should maintain as much communication as possible with the dying. They should attend to needs and complaints and not give up in the supposition that the end was near. Attention should be paid to the patient's hygiene such as cutting nails, shaving hair, dressing in clean clothes. As much as possible the dying patient should be in a state of rutual purity, wudhu, all the time.

12.2 IBADAT:

The dying patient should as far as is possible be helped to fulfill acts of worship especially the 5 canonical prayers. Tayammum can be performed if wudhu is impossible. Physical movements of salat should be restricted to what the patient's health condition will allow. The prophet gave guidelines on salat even for the semi-conscious patient, salat al mughma ‘alayhi. The terminal patient is exempted from saum because of the medical condition. It is wrong for a patient in terminal illness to start fasting on the grounds that he will die anyway whether he ate enough food or not. lllness does not interefere with the payment of zakat since it is a duty related to the wealth and not the person. The terminal patient is excused from the obligation of hajj. It is also wrong for a patient in terminal illness to go for hajj with the intention of dying and being buried in Hejaz.

12.3 SPIRITUAL PREPARATION.

Spiritual preparation involves allaying anxiety, presenting death as a positive event, thinking of Allah, and repentance. Caregivers should allay fear and anxiety about impending death. Death of the believer is an easy process that should not be faced with fear or apprehension. The process of death should be easier for the believer than the non-believer. The soul of the believer is removed gently. Believers will look at death pleasantly as an opportunity to go to Allah. Allah loves to receive those who love going to Him. The patient should be encouraged to look forward to death because death from some forms of disease confers martyrdom. The patient should be told that Allah looks forward to meeting those who want to meet Him (KS525). Dying with Allah's pleasure is the best of death and is a culmination of a life-time of good work. Thinking well of Allah is part of faith and is very necessary in the last moments when the pain and anxiety of the terminal illness may distract the patient's thoughts away from Allah. Having hope in Allah at the moment of death  makes the process of dying more acceptable. The dying patient should be encouraged to repent because Allah accepts repentance until the last moment.

12.4 LEGAL PREPARATION

During the long period of hospitalization, the health care givers develop a close rapport with the patient. A relationship of mutual trust can develop. It is therefore not surprising that the patient turns to the care givers in confidential matters like drawing a will. The health care givers as witnesses to the will must have some elementary knowledge of the law of wills and the conditions of a valid will, shuruut al wasiyyat. One of these conditions is that the patient is mentally competent. The law accepts clear signs by nodding or using any other sign language as valid expressions of the patient's wishes. The law allows bequeathing a maximum of one third of the total estate to charitable trusts, waqf, or gifts. More than one third of the estate can be bequeathed with consent of the inheritors. Debts must be paid before death or before the division of the estate. A terminal patient can make living will regarding donation of his organs for transplantation. The caregiver must explain all what is involved so that an informed decision is made. The caregiver may be a witness. It is however preferable that in addition some members of the family witness the will to ensure that there will be no disputes later. The caregiver may be a witness to pronouncement of divorce by a terminally ill patient. The pronouncement has no legal effect if the patient is judged legally incompetent on account of his illness. If the patient is legally competent, the divorce will be effective but the divorcee will not lose her inheritance rights. The caregiver should advise the terminal patient to remember all his outstanding debts and to settle them. The prophet used to desist from offering the funeral prayer for anyone who died leaving behind debts and no assets to settle them. He however would offer the prayer if someone undertook to pay the debt. If the deceased has some property, the debts are settled before any distribution of the property among the inheritor.

12.5 DEATH, BURIAL, and MOURNING

The last moments are very important. The patient should be instructed such that the last words pronounced are the kalimat, the testament of the faith. Once death has occurred the body is placed in such a way that it is facing the qiblat. Eyes are closed and the body is covered. Qur'an and dua are then recited. The health care giver should take the initiative to inform the relatives and friends. They should be advised about the shariah rules on mourning. Weeping and dropping tears are allowed. On receiving the news of death it suffices to say 'we are for Allah and to Him we will return'. The following are not allowed: tearing garments, shaving the head, slapping the cheek, wailing, and crying aloud. Relatives are comforted by telling them hadiths of the prophet about death. These hadiths talk about the reward of the person who loses his beloved one and he is patient. The health care team should practice total care by being involved and concerned about the processes of mourning, preparation for burial and the actual burial. They should participate along with relatives as much as is possible. The preparation of the body for burial can be carried out in the hospital. The body must be washed and shrouded before burial. Perfume can be put in the water used for washing the body. The washing should start with the right. The organs normally washed in wudhu are washed first then the rest of the body is washed. Perfume can be used except for those who died while in a state of ihram. Women's hair has to be undone. After washing the body is shrouded, kafn, in 2 pieces of cloth preferably white in color. As many persons as possible should participate in salat al janazat. Burial should be hastened. Following the procession is enjoined There is more reward for accompanying the funeral procession and staying until burial is completed. The funeral bier is carried by men. Hurrying in marching to the grave is recommended. The body should be buried in a deep grave facing Makka. After burial, the relatives are consoled and food is made for them. Women in mourning should not touch any perfume. Only good things should be said about the deceased.

13.0 ETIQUETTE IN THE HEALTH CARE TEAM

13.1 PRINCIPLES OF GROUP WORK

A group is several interdependent and interacting persons. Work is enjoined in groups that are united, cooperative, open and trusting. Group members must be similar, empathetic, supportive, and sharing. Separation from group is condemned. Group norms must be respected. Breaking norms, secretive behavior, concealment of information, and secret talks destroy groups. Group membership has benefits of integration, stimulation, motivation, innovation, emotional support, and endurance. Group performance is superior to individual performance. Group membership has the disadvantages of arrogance, suppression of individual initiative, member mismatch, and intra-group conflict. Group formation has 4 stages: forming (acquaintance and learning to accept one another), storming (emotions and tensions), initial integration (start of normal functioning), total integration (full functioning), and dissolution. Mature groups have group identity, optimized feedback, decision-making procedures, cohesion, flexibility of organization, resource utilization, communication, clear accepted goals, interdependence, participation, and acceptance of minority views. Groups fail when constituted on the wrong basis, when members cannot communicate, when there is no commonality (interests, attitudes, and goals), and when they have diseases of hasad, nifaq, namiimah, gaybah, kadhb, riyah, kibriyah, hubb al riyasa, tajassus, and dhun al soo. An effective group follows the Qur'an and sunnat, members feel secure and not suppressed, members understand and practice sincere group dynamics, members are competent and are committed to the group and the leadership.

13.2 ETIQUETTE of TEACHING & LEARNING in THE HEALTH CARE TEAM

The hospital health care team is complex and multi-disciplinary with complementary and inter-dependent roles. Members have dual functions of teaching and delivering health care. Most teaching is passive learning of attitudes, skills, and facts by observation. Teachers must be humble. They must make the learning process easy and interesting. Their actions, attitudes, and words can be emulated. They should have appropriate emotional expression, encourage student questions, repeat to ensure understanding, and not hide knowledge. The student should respect the teacher for the knowledge they have. They should listen quietly and respectfully, teach one another, ask questions to clarify, and take notes for understanding and retention. They should stay around in the hospital and with their teachers all the time to maximize learning.

13.3 ETIQUETTE of CARE DELIVERY in THE HEALTH CARE TEAM

Each member of the team carries personal responsibility with leaders carrying more responsibility. Leaders must be obeyed except in illegal acts, corruption, or oppression. Rafidah was good model of etiquette. She a kind, empathetic, a capable leader and organizer, clinically competent, and a trainer of others. Besides clinical activities, she was public health nurse and a social worker assisting all in need. The human touch is unfortunately being forgotten in modern medicine as the balance is increasingly tilted in favor of technology.

13.4 THE HEALTH CARE TEAM: GENERAL GROUP DYNAMICS

Basic duties of brotherhood and best of manners must be observed. Encouraged are positive behaviors (mutual love, empathethy, caring for one another; leniency, generosity, patience, modesty, a cheerful disposition, calling others by by their favorite names, recognizing the rights of the older members, and self control in anger. Discouraged are negative attributes (harshness in speech, rumor mongering, excessive praise, mutual jealousy, turning away from other for more than 3 days, and spying on the privacy of others).

13.5 THE HEALTH CARE TEAM: SPECIAL GROUP DYNAMICS

Gender-specific identity should be maintained in dress, walking, and speaking. Free mixing of the genders is forbidden but professional contact within the limits of necessity is allowed. Patients of the opposite are examined in the presence of a chaperone. The gaze should be lowered. Modest and covering must be observed. Display of adornments that enhance natural beauty must be minimized.

14.0 USE OF ANIMALS IN RESEARCH

14.1 ENJOINING KINDNESS TO ANIMALS

The prophet enjoined kindness to animals. Saving animals from danger is a noble act. There is reward for kindness to animals.

14.2 PROHIBITING CRUELTY TO ANIMALS

Cruelty and physical abuse of animals are prohibited. There is severe punishment is reserved for cruel treatment if animals. Face branding, beating, cursing, sexual abuse, sexual abuse, and wanton killing of animals were forbidden.

14.3 ANIMAL RESEARCH: PURPOSE and RELEVANCE

The purpose of animal research is to spare humans from risk. Findings in animals are relevant to humans because of similarities in physiology and biochemistry. However findings in animals cannot be directly transferred to humans; research on humans is still necessary for a definitive conclusion. Animal research is exploratory and not definitive.

14.4 THE LAW AND ANIMAL EXPERIMENTATION

The position of the Law is that animal experiments are allowed if a prima facie case can be established that the result of the research is a necessity, dharuurat. Dharuurat under the Law is what is necessary for human life. The regulations of necessity require that no more than the absolute minimum necessary should be done, al dharurat tuqaddar bi qadiriha. Animal research has definite risks for the animals that are not balanced by any benefits: pain, suffering, permanent injury, inhumane treatment and operations, and being killed (sacrificed). Thus use of animals in justifiable on the basis of taskhiir and not any benefits that accrue to the animals. The risks to humans from animal research are minimal in the short term; long-term effects are difficult to fathom. The purposes and principles of the Law can be used to analyze all legal aspects of animal experimentation.

14.5 OUTSTANDING ETHICO-LEGAL ISSUES

There are limits to taskhiir. Humans were not given a carte blanche to exploit animals in any way they liked. They have to conform to the Law and moral guidelines. If the results of animal experimentation will lead to protection of human life, then research is allowed to proceed because then it is a necessity. This is similar to killing animals for food, a necessity for human life. If research is for general scientific curiosity unrelated to any tangible human benefit, then it is beyond the authorization of taskhiir. There are differences among animals. Animals considered dangerous and must be killed. Use of such animals for research should therefore raise fewer ethical objections than other animals. All types of animals used in research cannot be subjected to unnecessary pain and suffering. Animals whose flesh is edible are preferably used in research. Use of animals that are haram like the pig should be avoided as much as possible and should be considered only in cases of dharurat. Animals, like humans, have rights to enjoyment of life and good health. The researcher must therefore follow Islamic etiquette to minimize animal suffering. The basmalah is said at the start of an animal experiment, similar to slaughter of animals for food, in recognition of the fact that the experiment is carried out with the permission of the creator under the requirements of taskhiir. The animals must be shown kindness and respect. They should not be subjected to the psychological pain of seeing other animals in pain or being sacrificed. Pain must be minimized both during the experiment and when the animal is being terminally sacrificed. This is based on the legal requirement of slaughtering animals using a sharp knife and as quickly as possible to prevent pain and suffering. The long-term effects of the experiment on the animal must be considered and efforts made to decrease suffering and pain. The nutritional and medical needs of the animal must be taken care of before, during, and after the research.

15.0 ETIQUETTE OF RESEARCH ON HUMANS

15.1 HISTORICAL BACKGROUND

Early humans experimented with several plants and by trial and error found some to be useful as medicines and others to be poisonous. These early experiments were not planned in a systematic way neither were they documented. Galen founded experimental medicine before 200 CE. Historical experiments were carried out by James Lind In 1747 on scurvy, Dr Edward Jenner in 1798 on small pox, and Goldberger in 1914 on pellagra. Community trials were carried out on vitamin C, the Salk and HBV vaccines, cardiac disease risk factors, and water fluoridation for dental caries. Clinical trials were on streptomycin in TB 1948, aspirin and vitamin C for cancer prevention, alpha-tocopherol and beta-carotene in lung cancer prevention in smokers. Unethical experiments without informed consent were carried out in the 1940s, 1950s, and 1960s. The Nuremberg code of 1946 laid down rules on voluntary informed consent, unnecessary experiments, animal before human experimentation, physical and mental suffering, scientific qualification of researchers, freedom of subjects to withdraw, and stopping the investigation if patient are in danger. The Helsinki Declaration of 1964 incorporated the Nurenberg code. Its basic principles were: conformity generally accepted scientific principles, qualified researchers, risk benefit assessment, research subject welfare, and full disclosure before informed consent. The Nuremberg and Helsinki codes on experimentation did not stop all unethical research. They lack were neither laws enforceable by the state nor moral standards enforced by conscience. They are an unsuccessful attempt at bridging the secular divide between morality and public life. Islam on the other hand looks at problems of human experimentation as purely legal issues. The Law provides adequate guidelines and safeguards. Islamic Law, unlike western law, incorporates morality in its fabric. There is therefore no need to have special ethical codes outside the Law.

15.2 PURPOSES OF THE LAW IN HUMAN EXPERIMENTATION

The Islamic ethical theory on research is based on the 5 purposes of the Law, maqasid al shari’at, religion, life, progeny, the mind, and wealth. If any of the 5 necessitiesis at risk permission is given to undertake human experiments that would otherwise be legally prohibited. Therapeutic research fulfills the purpose of protecting health and life. Infertility research fulfils the purpose of protecting progeny. Psychiatric research fulfills the purpose of protecting the mind. The search for cheaper treatments fulfills the purpose of protecting wealth.

15.3 PRINCIPLES OF THE LAW IN HUMAN EXPERIMENTATION

The 5 principles of the Law guide research. Research is judged by its underlying and not expressed intentions. Research is prohibited if certainty exists about beneficial existing treatment. Research is allowed if benefit outweighs the risk or if public interest outweighs individual interest. If the risk is equal to the benefit, prevention of a harm has priority over pursuit of a benefit of equal worth. The Law chooses the lesser of the two evils, injury due to disease or risk of experimentation. The principle of custom is used to define standards of good clinical practice as what the majority of reasonable physicians consider as reasonable. Under the doctrine of istishaab, an existing treatment is continued until there is evidence to the contrary. Under the doctrine of istihsaan a physician can ignore results of a new experiment because of some inclination in his mind. Under the doctrine of istislaah preventing a harm has priority over obtaining a benefit.

15.4 INFORMED CONSENT

Informed consent by a legally competent research subject is mandatory. Informed consent does not legalize risky non-therapeutic research with no potential benefit. It is illegal to force participation of the weak (prisoners, children, the ignorant, mentally incapacitated, and the poor) in clinical trials even if they sign informed consent forms.

15.5 OUTSTANDING ETHICO-LEGAL ISSUES

Research on fetal human tissues may encourage abortion. Cadaver dissection and post mortem examination are permitted under necessity. Use of human bodies in auto crass experiments violates human dignity. Genetic experiments may cause diseases hitherto unknown. The Law allows research on ageing as long as the aim is not prolongation of life or preventing death because those aspects are under Allah’s control.