061231P - MEDICAL ETHICS FROM MAQASID al SHARI’AT[*]

Paper presented at workshops on medical ethics at campuses in England 09-31 December 2006 by Professor Dr Omar Hasan Kasule, Sr. MB ChB (MUK), MPH & DrPH (Harvard), Professor of Epidemiology and Islamic Medicine Institute of Medicine, University of Brunei Darussalam

ABSTRACT

Secularized European law denied moral considerations associated with ‘religion’ and therefore failed to solve issues in modern medicine requiring moral considerations. This led to the birth of the discipline of medical ethics that is neither law enforceable by government nor morality enforceable by conscience. On the other hand, Islamic Law is comprehensive and encompasses moral principles directly applicable to medicine.

This paper proposes that the theory of medical ethics in Islam should be based on the 5 purposes of the Law, maqasid al shari’at, that are also considered the 5 purposes of medicine. The 5 purposes are preservation of religion and morality, hifdh al ddiin; preservation of life and health, hifdh al nafs; preservation of progeny, hifdh al nasl; preservation of intellect, hifdh al ‘aql; and preservation of wealth, hifdh al maal. Any medical action must fulfill one of the above purposes if it is to be considered ethical. If any medical procedure violates any of the 5 purposes it is deemed unethical.

This paper proposes that the basic ethical principles of Islam relevant to medical practice be derived from the 5 principles of the Law, qawa’id al shari’at, that are: intention, qasd; certainty, yaqeen; injury, dharar; hardship, mashaqqat; and custom or precedent, ‘aadat. The maqasid and qawa’id are used in a synergistic way. The basic purpose of qawa’id is to provide robust rules for resolving situations of conflict between or among different maqasid.

The challenge before Muslim physicians is to liberate themselves from confusing and inconsistent European ethical theories and principles and instead to work hard to develop specific regulations for various medical interventions, dhawaabit al tibaabat, by a renewal of ijtihad. This ijtihad will be based on primary sources of the Law (Qur’an and sunnat), secondary sources of the Law based on transmission, masaadir naqliyyat (ijma and qiyaas); secondary sources of the Law based on reason, masaadir ‘aqliyyat (istishaab, istihsaan, & istilaah); the purposes of the Law, maqasid al shari’at; principles of the Law, qawa’id al fiqh; as well as regulations of the Law, dhawaabit al fiqh.

In the early period of medical jurisprudence (0-1400 H) most issues could be resolved by direct reference to the primary sources. In the middle period (1401 – 1420 H) issues were resolved by using ijma, qiyaas, istishaab, istihsaan, & istilaah. In the modern period (1420 - ) medical technology is creating so many issues whose resolution will require a broad bird’s eye-view approach that can only be found in the theory of maqasid al shari’at.

1.0 INTRODUCTION

Medical ethics is both old and new. Some statements in the Hippocratic oath deal with professional medical ethics and Ibn Sina wrote about ethics. Concern with ethics in the past was not as intensive as it is at the moment. It was assumed that physicians would be ethical and moral in their work and this was true to a large extent because religiosity was a leading characteristic of life in the past. Towards the end of the 14^th hijri century ethical considerations became a major concern for two reasons. The first reason was that developments in medical technology gave rise to problems such as life-support, in-vitro fertilization and others that had moral dimensions. The second reason was the increase in moral violations by medical practitioners. The European medical profession found itself in a dilemma because moral values were not part of the secular medical tradition. The rebirth (renaissance) of the discipline of ethics thus became inevitable.

Muslims did not face a similar dilemma because Islamic Law, unlike European secular law, is based on a complete system of morality and can therefore handle all moral problems that arise in medicine from a legal perspective. It also is very flexible being adaptable to many new and novel situations. Strictly speaking, Muslims do not need to talk of ethics as a separate discipline because it is already included in their Law.

 

Muslim physicians trained in the European tradition tended in the past to employ European ethical theories and principles in dealing with ethical problems in medicine. This paper proposes that Muslims should turn to their intellectual and legal heritage as a source of ethical guidelines. The paper critiques European ethics by pointing out conceptual and practical defects. It then presents Islamic ethical system as a more robust and consistent guideline for ethical dilemmas in medicine.

 

2.0 CRITIQUE OF EUROPEAN ETHICS

EUROPEAN MORALITY

The term European in this paper is used in a cultural and not a geographical sense to refer to people of European origin who live in the European continent, North and South America, Australasia, and other parts of the world colonized by Europeans over the past 500 years. The European civilization has its roots in the Greco-Roman and Judeo-Christian traditions.

Europeans have had a problem dealing consistently with moral issues after removing religion from public life over the past 5 centuries of secularism that followed the European renaissance. Morality to them is communal consensus about what is right and what is wrong[1]. For example codes of professional conduct are a consensus reached within each profession. Ethical guidelines are developed while reasoning through ethical or practical dilemmas. This reasoning can be weak and inconsistent if not based on an underlying coherent system of moral values.

European law is not always consistent in dealing with issues of a moral nature. Unlike Islamic Law, European law is not the expression and practical manifestation of a definable system of immorality. As a consequence European law does not always permit all morally acceptable practices and neither does it automatically ban all immoral activities. It sometimes bans morally acceptable practices. It also deals paradoxically with some situations. For example a man who marries 2 wives is punished severely for the crime of bigamy. If on the other hand he co-habits with 4 women as girl friends and has children with them, he will not be penalized. The law recognizes his paternity. It also recognizes specific financial rights of inheritance and maintenance for the women and the children.

An ethical theory provides a framework within which moral reasoning and judgment can be undertaken. There is no one coherent European theory of ethics because of historical reasons. Judeo-Christian concepts were Europeanized when the Roman Empire opted for Christianity and the system of moral values developed in Europe became a syncretic compromise between the pagan European polytheistic Greco-roman religion on one hand and the Judeo-christian religion on the other hand. During the renaissance the Christian church was relatively marginalized. There was a partial return to Greco-roman ideas and practices starting with the renaissance. This resulted into a complex mosaic of moral and philosophical concepts of secular Europe. In these circumstances it became difficult to define or follow one coherent ethical theory.

Secularism gradually encroached on civil life starting with the renaissance. By the 20^th century, all aspects of European life including medicine had become secularized. The practical manifestation of this secularization was the marginalization of religious and moral values and confining them to the private arena of individual belief. Secularized European law is in essence a denial of moral considerations in law because morality is associated with ‘religion’. However application of the secularized law in medicine showed its deficiencies because issues arose that required moral considerations. The medical profession and society at large were not ready to face the new challenges. The existing positive secular laws lacked a moral spine. It became necessary to develop secular medical ethics as a new discipline to deal with the challenges. Unfortunately this discipline was not wholly effective because it neither law enforced by the authority of the state and neither morality enforced by conscience. It was unfortunate that Muslims with the rich intellectual heritage of usul al fiqh followed the European into the lizard hole by  copying and uing inferior European ethical theories, principles, and rules.

Europeans consider the Hippocratic oath as the starting point of ethical reasoning. This is supplemented by views of European philosophers and thinkers to develop ethical theories used to solve practical problems. Starting in about 1976M TL Beauchamps and JF Childress were pioneers in systematically laying down theories and principles of European medical ethics¹.

EUROPEAN ETHICAL THEORY

According to Beauchamp and Childress¹ there are eight ethical theories. None of them can singly explain all ethical or moral dilemmas. None of them taken singly has the attributes of a good ethical theory: clear, coherent, complete, comprehensive, simple, practicable, and able to explain and justify. In practice more than one theory may have to be combined to solve a specific ethical issue. This is cumbersome and confusing.

According to the utilitarian consequence-based theory, an act is judged as good or bad according to the balance of its good and bad consequences. Utilitarianism aims at attaining the greatest positive with the least negative. Utilitarianism has the disadvantage of permitting acts that are clearly immoral on the basis of utility. The obligation-based theory is based on Kantian philosophy. Immanuel Kant (1724-1804M) argued that morality was based on pure reasoning. He rejected tradition, intuition, conscience, or emotions as sources of moral judgment. He argued that a morally valid reason justifies action and that acts are based on moral obligations. The problem with the Kantian theory is that it has no solution for conflicting obligations because it considers moral rules as absolute. The rights-based theory is based on respect for human rights of property, life, liberty, and expression. The problem of the rights-based theory is that emphasis on individual rights creates an adversarial atmosphere. Individual rights may conflict with communal rights. Rights of one individual may conflict with those of another one. According to the community-based theory, ethical judgments are controlled by community values that include considerations of the common good, social goals, and tradition. This theory repudiates the rights-based theory that is based on individualism. The problem with this theory is that it is difficult to reach a consensus on what constitutes a community value in today’s complex and diverse society. The relation-based theory gives emphasis to family relations and the special physician-patient relation. For example a moral judgment may be based on the consideration that nothing should be done to disrupt the normal functioning of the family unit. The problem of this theory is that it is difficult to deal with and analyze emotional and psychological factors that are involved in relationships. The case-based theory is practical decision-making on each case as it arises. It does have fixed philosophical prior assumptions. It can give contradictory conclusions for cases of a similar nature and is very vulnerable to bias.

 

EUROPEAN ETHICAL PRINCIPLES

Ethical principles are specific axioms that simplify ethical reasoning. There are 4 basic European ethical principles according to Beauchamp and Childress¹. The principle of autonomy is the power of the patient to decide on medical procedures. The principle of non-maleficence is avoiding causation of harm. The principle of beneficence is the providing benefits and balancing them against risks and costs. The principle of justice is distribution of benefits, costs, and risks fairly.

European ethical principles are not based on a comprehensive ethical theory comparable to the theory of purposes of the Law, maqasid al shari’at, found in Islam. There is correspondence between these principles and some of the qawai’d al shari’at. Compared to the qawa’id the principles of Beauchamp and Childress are limited in scope of coverage.

EUROPEAN ETHICAL RULES

According to Beauchamp and Childress¹, application of the above principles requires ethical rules. The European ethical rules may be substantive rules, authority rules, or procedural rules. The substantive rules deal with veracity, confidentiality, privacy, and fidelity. The authority rules deal with surrogacy, professional authority, and rationing. The procedure rules are specific on procedures to be followed. The European ethical rules can be related to regulations of Islamic Law, dhawaabit al fiqh. The European rules are very narrow in scope compared to the dhawaabit al fiqh.

3.0 ISLAMIC ETHICS: GENERAL CHARACTERISTICS

Morality and ethics in Islam are absolute and are of divine origin. Human consensus not deriving from divine legislation cannot be a source of binding ethical guidelines. All what humans do it to apply the legal and moral teachings of Islam to practical situations. Islamic Law automatically bans all immoral actions as haram and automatically permits all what is moral as mubaah.

Ethical guidelines are both fixed and variable. The fixed moral and legal principles are broad enough to encompass the needs of all times and places. The detailed applications are variable and change with the growth of science and technology. The fixed principles set the parameters beyond which it is absolutely immoral to operate. Within these parameters, consensus can be reached on specific moral issues.

Islam holds that ethics cannot be divorced from morality. Ethics can also not be divorced from Law. Islamic Law is a compendium of ethics, morality, and legal rules. The purposes of the Law, maqasid al shari’at[2], the principles of the Law, qawa’id al fiqh[3], and the regulations of the Law, dhawaabit al fiqh³, are therefore the basis of ethics. Islam holds that the human mind, unless corrupted by shaitan, is capable to working out rationally what is right and what is wrong for most problems of life. There are however a few gray areas for which moral reasoning needs to be guided by revelation, wahy, to reach correct conclusions.

Islam considers medical ethics the same as ethics in other areas of life. There is no special code for physicians. What we call medical ethics is restating general ethical principles using medical terminology and with medical applications. The medical ethical codes can be derived from the basic law but the detailed applications require further intellectual effort, ijtihad, by physicians.

Strange as it may sound, some ethical problems are solved by avoiding them. This is part of the Islamic teaching of avoiding doubtful things. The prophet taught us to leave what causes us doubts to what does not cause such doubt, da’ ma yuribuuka ila ma la yuriibuka[4].

The ethical theory of Islam is found in the 5 purposes of the Law, maqasid al shari’at. The five purposes are preservation of ddiin, life, progeny, intellect, and wealth. Any medical action must fulfill one of the above purposes if it is to be considered ethical. The basic ethical principles of Islam relevant to medical practice are derived from the 5 principles of the Law are: intention, qasd; certainty, yaqeen; harm, dharar; hardship, mashaqqat; and custom, and ‘aadat.

4.0 PURPOSES OF MEDICINE = maqasid al shari’at

The first purpose is protection of ddiin, hifdh al ddiin. It involves both physical health and mental health. Protection of ddiin 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 phusical and mental energy to undertake all the responsibilities of ‘ibadat. The principal forms of physical ‘ibadat are prayer, salat; fasting, siyaam; and pilgrimage, hajj. A sick or a weak body can perform them properly. Balanced mental health is necessary for understanding ‘aqiidat and avoiding false ideas that violate ‘aqiidat because ‘aqiidat is the basis of ddiin.

The second purpose is protection of life, hifdh al nafs, the primary purpose of medicine. 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 physiological functions are well maintained. It also relieves pathophysiological stress by preventive, curative, and rehabilitative measures.

The third purpose is 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 male and female infertility ensures successful reproduction. The care for pregnant women, perinatal medicine, and pediatric medicine all ensure that children are born and grow healthy.

The fourth purpose is 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.

The fifth purpose is protection of wealth, hifdh al maal. 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 healthy vibrant communities. 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. Resolution of such contrasts requires resort to the principles of the Law, qawa’id al shari’at, that are described below.

5.0 PRINCIPLES OF MEDICINE = qawai’d al shari’at

PRINCIPLE OF INTENTION

The first principle is the principle of intention, qa’idat al qasd. It gives rise to several sub-principles applicable to medical practice. The sub-principle ‘each action is judged by the intention behind it, al umuur bi maqasidiha’ calls upon the physician to consult his inner conscience. There are many issues about medical procedures and medical decisions that are hidden from public view. A physician may carry out a procedure for a stated reason that seems plausible on the outside but he may have a different but hidden intention. A practical example is use of morphine for pain relief in terminal care when the actual intention may be to cause respiratory depression that will lead to death. The sub-principle 'what matters are the intentions and not the literal meaning – maqasid wa ma’aani la alfaadh wa mabaani’ is used to refute use of legal arguments based on literal translation of the text to justify immoral acts. An example is the interpretation of the hadith on embryological development to justify abortion on demand before ensoulment. The sub-principle ‘means are judged with the same criteria as the intentions – al wasail laha hukm al maqasid’ implies that no useful medical purpose should be achieved by using immoral methods.

PRINCIPLE OF CERTAINTY

The second principle is the principle of certainty, qaidat al yaqeen. In both the diagnosis of disease and choice of treatment, modern medicine does not reach the standards of yaqeen demanded by the Law. It operates at the level of predominant conjecture, ghalabat al dhann. It cannot operate at the level of conjecture, dhann, or pure doubt, shakk. Legal certainty, yaqeen, a situation when there is no doubt, shakk, or second thoughts, taraddud, does not exist in medicine. Ghalabat al dhann is when there is preponderant evidence for one option and not the other. In dhann there is inclination to one option but there is not enough evidence for that option. In shakk the evidence for the 2 options is of equal weight. Experimental therapies are used without certainty of the effect. In many cases a presumptive diagnosis is made and treatment proceeds. Treatment may be symptomatic where there is no clue to the cause. Everything in medicine is probabilistic and relative. Treatment decisions are best on a balance of probabilities. When a diagnosis is made, it should be treated as a working diagnosis until new information is obtained to change it. 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, al asl baqau ma kaana ‘ala ma kaana.

The principle of certainty also applies to consideration of pathological conditions A pathological or clinical event is considered of recent occurrence unless there is evidence to the contrary, al asl idhafat al haadith ila aqrab waqtihi. An acquired attribute or change is not accepted as normal unless there is compelling evidence, al asl fi al umuur al ‘aaridhat al ‘adam. An existing condition whose origin or cause is not known should be left as is until there is evidence to the contrary, al qadiim yutraku ala qadamihi. This principle protects against unnecessary medical interventions in long-standing anomalies or deformities that do not appear to cause any discomfort. What has been accepted as customary over a long time is not considered harmful unless there is evidence to the contrary, al qadiim la yakuun dhararan.

According to the principle of certainty all medical procedures are considered permissible unless there is evidence to prove their prohibition, al asl fi al ashiya al ibaaha. 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, al asl fi al abdhai al tahriim.

 

PRINCIPLE OF INJURY

The third principle is the principle of injury, qa’idat al dharar. Medical intervention is justified on the basic principle that injury, if it occurs, should be relieved, al dharar yuzaal. The physician should however cause no harm in the course of his work according to the principle of la dharara wa la dhirar. Injury should be prevented or mitigated as much as is possible, al dharar yudfau bi qadr al imkaan. When an injury is found in a patient it is presumed to be of recent origin unless there is evidence to the contrary, al dharar la yakuun qadiiman, and therefore must be alleviated. An injury should not be relieved by a medical procedure that leads to an injury of the same magnitude as a side effect, al dharar la yuzaal bi mithlihi. 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, dariu an mafasid awla min jalbi al masaalih. 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, idha ijtama'a al halaal wa al haram ghalaba al haraam al halaaal. 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, ikhtiyaar ahwan al sharrain. A lesser harm is committed in order to prevent a bigger harm, al dharar al ashadd yuzaalu bi al dharar al akhaff. In the same way medical interventions that are in  public interest have priority over consideration of individual interest, al maslahat al aamat muqaddamat ala al maslahat al khaassat. The individual may have to sustain a harm in order to protect public interest, yatahammalu al dharar al khaas li dafu’i al dharar al aam. In the course of combating communicable diseases, the state may have to restrict movements of a citizen or even destroy his property. The state cannot infringe on the rights of the public unless there is a public benefit to be achieved, al tasarruf ala al ra'iyat manuutu bi al maslahat. 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.

PRINCIPLE OF HARDSHIP

The fourth principle is the principle of hardship, qa’idat al mashaqqat. Medical interventions that would otherwise be prohibited actions are permitted under the principle of hardship if there is a necessity, dharuurat. Necessity legalizes the prohibited, al dharuraat tubiihu al mahdhuuraat. 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, al mashaqqa tajlibu al tayseer. This is predicated on the general principle of Islam as an easy religion that cannot be made difficult and a burden for its followers, al ddiin yusr wa lan yashaada hadha al ddiin illa ghalabahu.

Some limitations of the principle of hardship need to be observed. 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, al dharuraat tuqaddar bi qadriha. Application of the principle of hardship is of limited duration. 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, al idhtiraar la yubtilu haqq al ghair. The temporary legalization of prohibited medical action ends with the end of the necessity that justified it in the first place, ma jaaza bi ‘udhri batala bi zawaalihi. This can be stated in al alternative way if the obstacle ends, enforcement of the prohibited resumes, idha zaala al maniu, aada al mamnuu’u. It is illegal to get out of a difficulty by delegating to someone else to undertake a harmful act, ma haruma fi’iluhu, haruma talabuhu.

PRINCIPLE OF CUSTOM

The fifth principle is the principle of custom or precedent, qa’idat al urf. The generally accepted standard of medical care is defined by custom. The basic principle is that custom or precedent has legal force, al aadat muhakamat. What is considered customary is what is uniform, widespread, and predominant, innama tu’utabaru al ‘aadat idha atradat aw ghalabat, and not rare, al ibrat li al ghaalib al shaiu la al naadir. The customary must also be old and not a recent phenomenon to give chance for a medical consensus to be formed.

6.0 REGULATIONS OF MEDICINE = dhawaabit al fiqh

DEFINITIONS

Dhaabit fiqhi is a general principle that applied to specific situations in one chapter of the law. Dhaabit is narrower in scope than the qaidat. The dhaabit deals with only one chapter of fiqh whereas qa’idat deals with several chapters. The dhaabit fiqhi is narrower in scope and admits fewer exceptions than the qa’idat fiqhiyyat.

OMNIBUS REGULATIONS

The physician must have technical competence, itiqaan, and aim at excellence and quality work, ihsaan. He must have balance, tawazun, in actions and attitudes. He must realize that he is carrying a great trust, amanat, and must continuously undertake self-criticism, muhasabat. Imaam al Nawawi in his book al Adhkaar[5] recorded over 30 hadiths that cover the core values around which Islam revolves, madaaru al islam.  These values are general guidelines for medical work. All work is recognized according to the intention behind it[6]. Doubtful things are better avoided[7]. Leave alone what does not concern you[8]. Love for others what you love for yourself[9]. Cause no harm[10]. Give sincerity advice[11]. Avoid what is prohibited and do as much as is possible of what is enjoined and avoiding too much sterile argumentation and questioning[12]. Renounce longing for the material goods of the world and the property of other people[13]. Do not take life except by judicial execution[14]. Claims or allegations must be supported by evidence[15]. In matters of right and wrong, the dictates of the conscience should be followed even if others say otherwise; the righteous act outs the heart at ease, the evil causes it distress[16]. Excellence and quality work are needed in all endeavors[17]. Guard the tongue[18]. It is better to keep silent than to speak evil[19]. Avoid anger and rage[20]. Do not transgress limits set by Allah[21]. Have consciousness of Allah in all circumstances[22]. Perform good acts to wipe out bad ones and treat people with the best of manners[23]. Exercise restraint and modesty[24]. Maintain objectivity[25]. Seek help from Allah[26]. Avoid oppression or transgression[27].

PHYSICIAN OBLIGATION

A sole medical practitioner is a community is individually obliged to provide medical benefit and relief as fard ‘ain. The obligation becomes fard kifayat is there are other equally competent caregivers. However if a patient has already started getting medical benefit from a particular physician, the individual responsibility of that physician remains even if there are other equally competent ones in the community.

 

RESPECT FOR PATIENT AUTONOMY

The principle of autonomy is derived from the shari’at principle of intention, qa’idat al qasd. Among all players in a medical scenario it is the individual patient who has the best and purest of intentions. He or she is best able to make decisions in the best interests of his or her life. Others may have other personal considerations that may bias their decision-making. It is for this reason that all decisions must be referred to the patient. No medical procedures can be carried out without informed consent except in cases of legal incompetence in which case the Law provides for other persons to make decisions on behalf of the incompetent patient.

VERACITY and DISCLOSURE

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. The physician should be guided in his communication by the background and understanding of a patient. Some patients can be given a lot of information and they do not get disturbed. Some types of information agitate patients. The prophet enjoined talking to each person according to his ability to understand, kalaam al naas hasba ‘uquulihim.

CONFIDENTIALITY

Revealing patient secrets violates fidelity which is the private and privileged relationship of trust between the patient and the caregiver. Revealing secrets harms the patient under the principle of Injury, qa’idat dharar. Under the principle of hardship, qa’idat al mashaqqa, secrets may be revealed under necessity, dharuurat. The injunction to keep secrets is binding on both the caregiver and the patient. The patient should not make unnecessary revelation of negative things about himself or herself, satr al mumin ala nafsihi[28]. In cases of court litigation, The caregiver could testify in criminal cases that involve dhulm. The Qur'an forbids the revelation of the shameful unless there is dhulm[29]. The caregiver cannot give false testimony[30].

FIDELITY

The principle of fidelity requires that physicians be faithful to their patients. Fidelity includes: acting in faith, fulfilling agreements, maintaining relations, and acting in trust and confidence. 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. These issues can be resolved by reference to the maqasid and qawa’id.

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* Paper first presented at the International Scientific Convention jointly organized by the Jordan Society for Islamic Medical Studies, the Jordan Medical Association, and the Federation of Islamic Medical Associations at Amman, Jordan 15-17 July 2004

[1] (Beauchamp & Childress. Principles of Biomedical Ethics. Oxford University Press 1979, 1994)

[2] Se details in: Abu Ishaq  al Shatibi. Al Muwafaqaat fi Usuul al Shari’at. Dar al Kitaab al ‘Aalamiyyat. Beirut.

[3] See details in: Ali Ahmad al Nadawi. Al Qawa’id al Fiqhiyyat. Damascus 1414H

[4] (Bukhari Kitaab al Buyuu’u Baab 2)

[5] al Nawawi. Al Adhkaar. Dar Ibn Kathiir. Beirut.

[6] (Bukhari Kitaab Badiu al Wahy Hadith 1)

[7] (Tirmidhi Hadith 2520)

[8] (Tirmidhi Hadith 2318)

[9] (Bukhari Kitaab al Iman Hadith 13)

[10] (Muwatta 2:745)

[11] (Muslim H55, Abudaud H4944, Nisai 7:152, Ahmad 4:102)

[12] (Bukhari H7288, Muslim H137, Nisai 5:110)

[13] (Ibn Majah H4102)

[14] (Bukhari H6878)

[15] (Bukhari H4552)

[16] (Darimi H2536)

[17]  (Muslim H1955)

[18] (Tirmidhi H2619)

[19] (Bukhari H6018)

[20] (Bukhari H6116)

[21] (Dar Qutni 4:184)

[22] (Tirmidhi H1988)

[23] (Tirmidhi H1988)

[24] (Bukhari H3483)

[25] (Muslim)

[26] (Tirmidhi H2518)

[27] (Muslim H2577)

[28] (Bukhari Kitaab al Adab Baab 60)

[29] (Qur’an 4:148, 24:19)

[30]  (Mukhtasar Bukhari Hadith No. 1176)