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Lecture for medical students at the Faculty of Medicine King Fahd Medical City Riyadh on April 14, 2010 by Professor Omar Hasan Kasule MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Department of Bioethics Faculty of Medicine KFMC omarkasule@yahoo.com
1.0 INTRODUCTION
1.1 The term ethics: The term 'ethics' translated into Arabic as ákhlaqiyaat' suggests an alien notion that ethics is separate from or is parallel to the law. Ethics is an indivisible part of Islamic Law unlike the situation in the west where ethics evolved in the recent past as a distinct area of study and practice to deal with issues of a 'moral' character that the secular positive law could not deal with since it divested itself of 'religious' elements.
1.2 Need for revelation: The Islamic view is that some moral issues cannot be resolved using empirical experience alone. Humans are endowed by the Creator with intellectual faculties to reason out what is morally right and what is morally wrong but they could get confused with some issues in which the line between right and wring is vague. That is why the Qur'an makes humans accountable for moral infractions based on violating clear injunctions from revelation[i] and are not held accountable for failures in their moral reasoning
1.3 Evolution of medical fiqh: Many issues that are sometimes considered ethical, are purely legal issues under the Islamic system. They are dealt with under the division of the Law called medical jurisprudence, fiqh tibbi. 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. 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 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.
2.0 THE SHARI'AT AS A SOURCE OF ETHICS
2.1 The Primary sources of the Law are the Qur'an and sunnat.
2.2 Secondary sources may be based on revelation (ijma & qiyas) or may be rational within the spirit of revelation (istishaab, istihsaan, & istislah). Ijma is consensus of all mujtahids existing at one time on a particular legal ruling based on nass. Qiyas is use of a ruling of one matter for another matter when the two share the same illat. 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
3.0 MAQASID AL SHARI "AT AS THE THEORY OF ISLAMIC MEDICAL ETHICS
The Islamic theory of ethics is based on the 5 general purposes, maqasid al shari'at[ii]. They are protection, preservation, and promotion of religion, life & health, the progeny, the intellect, and resources. 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 outside the Law. For any medical issue to be considered ethical, it must fulfill or not violate one or more of the 5 purposes that constitute the Islamic Theory of Ethics. All ethical violations can be related to violation of one or more of the 5 purposes.
3.1 Purpose #1: Protection of ddiin, hifdh al ddiin, is achieved by medical treatment of physical and mental illnesses enabling the patient to undertake physical obligations of worship which, viewed in the widest sense, include any human activity with a good purpose and intention, niyyat. An additional implication of this purpose of the Law is that ethical technology cannot be used to promote immoral actions such as promiscuity resulting from availability of safe contraceptives or physician-assisted suicide or genocide.
3.2 Purpose #2: Protection of life, hifdh al nafs, is the primary purpose of both preventive and curative medicine. From the Islamic perspective medicine focuses on the quality and not the quantity of life because the lifespan is under the Creator's control. A physician treating a patient focuses on improving the quality of remaining life to as high a level as is possible until the appointed time of death arrives. Measures aimed at improving quality may with Allah's permission result, as seen from a human perspective, in prolonged life but from the Creator's perspective there is no prolongation because all was pre-determined. Protection of life also includes preventive measures like vaccination which are legitimate and cannot be seen as opposing or anticipating the Creator's prerogatives. This is because all what a human undertakes is enabled and is permitted by the Creator.
3.3 Purpose #3: Protection of progeny, hifdh al nasl, is achieved by treatment of infertility, prenatal, obstetric care, and childcare that ensure that children are born and grow up to become healthy adults who will parent the next generation. This is a very important purpose because it ensures the survival of the human race. If the rate of reproduction falls below replacement levels whole communities could disappear within a few generations. Those communities will also suffer from a lop-sided dependence ratio: too many old people to be supported by a few young people. There is a specific and special obligations for Muslims to reproduce beyond the replacement level for the continuity of the community and ensure that it plays its due role in building human civilization and asserting values of morality, justice, and freedom. The community will have no perceptible impact if its numbers dwindle. Islam therefore has many specific regulations that impact on many ethico-legal issues in obstetric, gynecological, and pediatric practice.
3.4 Purpose #4: Protection of the mind, hifdh al ‘aql, is achieved by preventing and treating neuroses, psychoses, personality disorders, and various addictive disorders so that human intellectual function can be restored to its optimal level. The prohibition of alcohol and other psycho-active drugs is in conformity with this purpose. Also regulations about a lifestyle that balances between the spiritual and material and avoids excesses fulfill this important purpose. A happy and stable family is necessary for fostering balanced psychological and intellectual development that will prevent to a large extent many of the behavioral problems that youths and young adults experience.
3.5 Purpose #5: Protection of resources, hifdh al mal, involves both human and material resources. Promotion of human resources is achieved by general community health because it is only healthy citizens who can be productive to increase community wealth. This purpose has special application in medical practice: avoiding waste of resources in the hospital, conserving energy, and protecting the environment. It is also achieved by avoiding waste in the hospital environment. An even more urgent application is the need to control the spiraling costs of medical care driven by some factors that may not relate to promotion of quality life.
4.0 QAWA'ID AL SHARI'AT AS PRINCIPLES OF ISLAMIC MEDICAL ETHICS
In practice the theory of purposes of the Law is supplemented by ethical principles based on the 5 major fiqh principles[iii]. These principles are axioms that make rational decisions on contentious ethico-legal issues systematic and robust. It must be emphasized that they are not themselves a source of law but they make the understanding of the law easier
4.1 Principle #1: The principle of intention, qa’idat al qasd: requires pure and sincere intentions in all medical decisions and procedures. The intentions should be fully in the patient's interests; any other considerations can be considered unprofessional. Real intentions are internal and only the practitioner knows what is in his or her heart. This implies that a professional must consult his inner conscience. It is possible to do wrong things by the book and nothing but conscience can prevent such transgression.
4.2 Principle #2: The principle of certainty, qa’idat al yaqeen, requires that medical decisions are evidence-based. Subjective feelings are not acceptable. The issue that arises is the definition of the degree of certainty. It is impossible to reach absolute certainty and if that were the standard, few medical interventions would be carried out. Interventions can be undertaken if the evidence is preponderant. In emergencies interventions can be undertaken on imperfect evidence but in all circumstances we must attempt to reach as high a degree of certainty as is possible.
4.3 Principle #3: The principle of injury, qa’idat al dharar, requires careful balancing of the benefits of an intervention against its side effects. If the benefits clearly exceed the side effects then the intervention is undertaken. If the side effects clearly exceed the benefits in worth, a more conservative approach is advised. If the benefits and the side effects are equal in worth, it is best not to undertake the intervention unless there are specific extenuating circumstances. If confronted with two choices, both being risky, it is advised to undertake the one with the lesser risk. This reflects the general conservative trend of Islamic law.
4.4 Principle #4: The principle of hardship, qaidat al mashaqqat, allows medical procedures and therapies that are normally prohibited, haram, if there is a necessity, dharurat, of saving life. This is a great enabling principle that makes the practice of medicine in difficult circumstances. It is based on the premise that protection of life is supreme and supersedes many provisions of the Law.
4.5 Principle #5: The principle of custom or precedent, qaidat al urf, is the basis for treating generally acceptable protocols and procedures as legally binding on every practitioner. A physician should practice according to what is considered customary. This principle protects patients from adventurous treat.