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Paper delivered at a half-day seminar on Issues in Medical Ethics: an Islamic Perspective held at al Islam Specialist Hospital Kuala Lumpur on 19th July 2009 by Professor Omar Hasan Kasule Sr MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor King Fahad Medical College Riyadh, Professor of Epidemiology and Islamic Medicine University of Brunei and Visiting Professor of Epidemiology University of Malaya. EM: omarkasule@yahoo.com and WEB: http://omarkasule.tripod.com
1.0 INTRODUCTION
The principles of the Law, qawa’id al shari’at, are practical extensions and interpretations of the maqasid.
2.0 The principle of intention, qa’idat al qasd
The Principle of intention comprises several sub principles. The sub principle that each action is judged by the intention behind it calls upon the nurse 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.
3.0 The principle of certainty, qaidat al yaqeen
Medical diagnosis and treatment must be based on certain evidence obtained from clinical examination and investigations. All medical procedures are considered permissible unless there is certain, yaqeen, evidence to prove their prohibition.
4.0 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. Nurses 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.
5.0 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.
6.0 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.