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Background material by Professor Omar Hasan Kasule Sr. for Year 1 Semester 1 Med PPSD session on 23rd September 2008
There are 5 legal principles that can guide the practice of medicine: intention, certainty, injury, hardship, and custom. The 4 ethical principles enunciated by Beauchamps can be shown by legal reasoning to be all encompassed in the principle of injury.
THE PRINCIPLE OF INTENTION, qa’idat al qasd
The principle of intention comprises several sub principles. The first 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 second sub-principle states that ‘what matters is the intention and not the letter of the law’ and rejects the wrong use of data to justify wrong or immoral actions.
The third sub principle states that means are judged with the same criteria as the intentions implies that no useful medical purpose should be achieved by using immoral methods.
THE PRINCIPLE OF CERTAINTY, qa’idat al yaqeen
The principle of certainty is involved in several medical issues. Medical diagnosis and treatment must be evidence-based which is the basis of certainty. Medical diagnosis cannot reach the legal standard of absolute certainty. 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.
THE PRINCIPLE PF INJURY, qa’idat al dharar
The principle of injury has many applications in medicine since each medical intervention is accompanied by some injury in the form of side effects.
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 prevention of 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 the physician has to listen to his conscience since no empirical methods can be used to resolve the dilemmas.
THE PRINCIPLE OF HARDSHIP, qa’idat al mashaqqat
The principle of hardship is used in difficult situations. 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 all rules and obligations.
THE PRINCIPLE OF CUSTOM, qa’idat al ‘aadat
The principle of custom or precedent provides stability to medical practice. The standard of medical care is defined by custom. The basic principle is that custom or precedent has legal force. Established medical procedures and protocols are treated as customs or precedents. They are considered permissible unless there is evidence to prove their prohibition.