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Remarks prepared at a meeting of the medical ethics encyclopedia project meeting held in Riyadh on 2nd September 2009 by Professor Omar Hasan Kasule Sr MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Islamic Medicine University of Brunei, Visiting Professor of Epidemiology University of Malaya and currently at the Faculty of Medicine King Fahad Medical City, EM: omarkasule@yaho.com, WEB: http://omarkasule.tripod.com
1.0 INTRODUCTION, muqaddimat
The term 'health ethics' translated as ákhlaqiyaat al mihnat al tibbiyat' should be used with caution in the Muslim World to avoid importing the western notion of ethics being separate from and parallel to the law because in Islam ethics are part of the shariát or fiqh. The paper discusses the evolution of medical ethics in the west to become a separate field that dealt with issues of a 'moral' character that the secular positive law could not deal with since it divested itself of 'religious' elements starting with the renaissance. Issues of a moral character can not be resolved using positive law or empirical experience, a higher authority is needed. For Muslims that higher authority is the shariát and its general purposes, maqasid al shariát.
2.0 MEDICAL ETHICS: THE EUROPEAN PERSPECTIVE, al mandhuur al urubi
Elements of what constitutes medical ethics today have existed since ancient times. Sections of the Hippocratic were statements of ethical values and regulations. However ethics was not recognized as a separate field of study until recently. Issues raised by advances in medical technology (such as life support, invitro fertilization, euthanasia) and increasing professional violations by physicians convinced medical leaders and teachers to pay attention to medical professional ethics. 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. The discipline faced many problems from the beginning. It lacked identity, it was neither a law that could be enforced by governmental executive authorities nor was it a injunctions that could be enforced by moral or religious sanctions. It also faced the challenge of finding conceptual or moral bases. Old Greek philosophies were tried as were also tried ethical views of more modern European philosophers with the result that several ethical theories were developed adding to the confusion. The general tendency has been a democratic approach to ethics: what the majority practice or consider to be ethical is ethical and this has been reinforced by legislation into law matters that previously were considered as part of ethics.
3.0 MEDICAL ETHICS: THE ISLAMIC PERSPECTIVE, al mandhuur al islami
Muslims did not share the European ethical dilemma mentioned above because their shari'at is comprehensive encompassing positive law as well as moral guidelines and sanctions. The shariát (hereinafter referred to as the Law with a capital L) is very comprehensive because of a diversity of sources. It has primary sources (Qurán and sunnat), secondary sources based on textual authority, nass (qiyaas and ijma), and secondary sources based on reasoning and /or empirical experience (istishaab, istihsaan, istislaah, and sadd al dhari'at). The Law derived from these various sources has general governing purposes, maqasid al shariát, that have to be understood for complete ethical analysis. The 5 purposes are preservation or preservation of morality, hifdh al diin; preservation of life, hifdh al nafs; preservation of progeny, hifdh al nasl; preservation of human intellect, hifdh al aql; and preservation of wealth, hifdh al maal. Above these are even higher purposes of istikhlaaf, isti'mar, and taskhiir. With clear and robust purposes and operating under various sources of the Law Muslims can analyze and resolve all ethical issues from within the Law and do not therefore need another discipline called ethics outside the shariát.
4.0 MAQASID AS THE ETHICAL THEORY OF ISLAM, maqasid al shariát nadhariyat al islam fi al akhlaaq
Protection of ddiin, hifdh al 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 energy to undertake all the responsibilities of ‘ibadat. A sick or a weak body cannot perform physical ‘ibadat properly. Balanced mental health is necessary for understanding ‘aqidat and avoiding false ideas that violate true ‘aqidat.
Protection of life, hifdh al nafs: The primary purpose of medicine is to fulfill the second purpose of the Law, 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 physiological functions are 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 the progeny 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, peri-natal 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.
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.
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 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.
5.0 QAWAID AL SHARIÁT AT ETHICAL PRINCIPLES OF ISLAM, qawaíd al fiqh hiya qawa'd al akhlaaq
The principle of intention, qa’idat al qasd: The Principle of intention comprises several sub principles. The sub principle ‘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 ‘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: Medical diagnosis cannot reach the legal standard of absolute certainty, yaqeen. Treatment decisions are based on a balance of probabilities. The most probable diagnosis is treated as the working while those with lower probabilities are kept in mind as alternatives. 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 of certainty asserts that uncertainty cannot abrogate an existing certainty. Existing assertions should continue in force until there is compelling evidence to change them. All medical procedures are considered permissible unless there is evidence to prove their prohibition.
The principle of injury, qa’idat 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 an injury has priority over pursuit of a benefit of equal worth. If the benefit has far more importance and worth than the injury, 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 injurious and there is no way but to choose one of them, the lesser injury is committed. A lesser injury is committed in order to prevent a bigger injury. In the same way medical interventions that are in the public interest have priority over consideration of individual interest. The individual may have to sustain an injury in order to protect public interest. In many situations, the line between benefit and injury is very fine.
The 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. Necessities legalize the prohibited, al daruuraat tubiihu al mahdhuuraat, and mitigate easing of legal rules and obligations. In the medical setting a hardship is defined as any condition that will seriously impair physical and mental health if not relieved promptly. 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. The temporary legalization of prohibited medical action ends with the end of the necessity that justified it in the first place.
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.
5.0 EVOLUTION OF MEDICAL JURISPRUDENCE, tatawwur al fiqh al tibbi
First period
There are three stages in the evolution of fiqh tibbi. In the first period (0 to circa 1370H) it was derived directly from the Qur’an and sunnat.
The second period
In the second period (1370-1420) rulings on the many novel problems arising from drastic changes in medical technology were derived from secondary sources of the Law either transmitted (such as analogy, qiyaas, or scholarly consensus, ijma) or rational (such as istishaab, istihsaan, and istirsaal).
The modern period
The failure of the tools of qiyaas to deal with many new problems led to the modern era (1420H onwards) characterized by use of the Theory of Purposes of the Law, maqasid al shari’at, to derive robust and consistent rulings. Ijtihad maqasidi is becoming popular and will be more popular in the foreseeable future.
The theory of maqasid al shari’at is not new but many people had not heard about it because its time had not yet come. By the 5-6th centuries of hijra the basic work on the closed part of the Law derived directly from primary sources was complete. Any further developments in the law required opening up new the flexible part of the law which necessitated discussion of the purposes of the law. It was at this time that al Ghazali and his teacher Imaam al Haramain al Juwayni introduced the ideas that underlie the concept of maqasid al shari’at. Other pioneers of the theory of maqasid al shari’at were Imaam an Haramain al Juwayni and his student Abu Hamid al Ghazzali (d. 505 H), Sheikh al Islam Ahmad Ibn Taymiyyah (d. 728H) and his student Ibn al Qayyim al Jawziyyat (d. 751H). The field of the purposes of the law witnessed little development until revived by the Abdalusian Maliki scholar Imaam Abu Ishaq al Shatibi in the 8th century AH who elaborated Ghazzali's theory. Our subsequent discussion of the purposes of the law is from al Shatibi's book al muwafaqaat fi usuul al shariat
6.0 THE PHYSICIAN ETIQUETTE, adab al tabiib
Education of the Physician
Etiquette of the Physician with the patient
- Duties and rights of the physician
- Bed-side visits
- Respecting rights of the patient: autonomy and consent, confidentiality
- Appearance and mannerisms of the caregiver
- Dealing with the family
Etiquette with the Health Care Team
Etiquette of Research on Animals
Etiquette of Research on Humans