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Presented at a seminar on 'Islamic Healthcare' held at the Faculty of Medicine International Islamic University Malaysia omarkasule@yahoo.com >
1.0 LAW AND ETHICS: AN OVERVIEW
1.1 Islamic Law is comprehensive. It is a combination of moral and positive laws. Secularized conventional law denies moral considerations associated with ‘religion’. Its failure to solve issues in modern medicine that required moral considerations led to the birth of the discipline of medical ethics. Muslims do not have a special discipline on medical ethics because medical ethical and moral issues are encompassed within Islamic Law.
1.2 Concern with moral issues in medicine increased in the recent past due to new medical technology and increase in moral violations by medical practitioners. Many international documents on ethics have been issued in the past quarter century: Declaration of Geneva, International Code of Medical Ethics, Declaration of Tokyo, Declaration of Oslo, and Declaration of Helsinki. Muslims did not need to publish any new declarations because principles of legal medicine are found within the Islamic Law. Islamic Law incorporates moral principles directly applicable to medicine.
1.3 Modes of ethical analysis: There are three conventional approaches to ethical analysis: normative (what ought to be done) or practical (what most people do), and non-normative (what is actually going on). The Islamic approach is to define what is immoral and automatically ban leaving the rest as allowable.
1.4 Inconsistency in conventional ethics: Conventional ethics has a problem dealing consistently with moral issues after removing religion from public life over the past 5 centuries of secularism. Morality became communal consensus about what is right and what is wrong. Thus ethics became relative and changeable with change of community values. Secular conventional law does not follow a consistent moral guideline. It does not automatically ban all what is immoral and does not automatically permit all what is moral. It therefore cannot give rise to a consistent ethical system. Morality in Islam is absolute and is of divine origin. The Law is the expression and practical manifestation of morality. It automatically bans all immoral actions as haram and automatically permits all what is moral or is not specifically defined as haram.
1.6 The absolute and the relative in Islamic ethics: The Islamic approach to ethics is a mixture of the fixed absolute and the variable. The fixed and absolute sets parameters of what is moral. Within these parameters, consensus can be reached on specific moral issues. Islam considers medical ethics the same as ethics in other areas of life. There is no need for a special code for physicians. Islamic medical ethics is restating general ethical principles using medical terminology and with medical applications.
1.7 Derivation of Islamic ethics from the Law; The ethical theories and principles are derived from the basic law but the detailed applications require further ijtihad by physicians. Islam has a parsimonious and rigorously defined ethical theory of Islam based on 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. The Islamic principles are wider in scope and deeper than the European principles.
2.0 ETHICAL THEORIES OF CONVENTIONAL ETHICS
2.1 Many ethical theories: According to Beauchamp and Childress there are eight conventional ethical theories. None of them can, on its own, explain all ethical or moral dilemmas. A good ethical theory must be clear, coherent, complete, comprehensive, simple, practicable, and able to explain and justify. None of these 8 theories has all these characteristics. In practice more than one theory may have to be combined to solve a specific ethical issue.
2.2 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 means attaining the greatest positive with the least negative. This theory has a problem in that it can permit acts that are clearly immoral on the basis of utility.
2.3 The obligation-based theory is based on Kantian philosophy. Immanuel Kant (1724-1804) argued that morality was based on pure reasoning. He rejected tradition, intuition, conscience, or emotions as sources of moral judgment. A morally valid reason justifies action. 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.
2.3 The rights-based theory is based on respect for human rights of property, life, liberty, and expression. The individual is considered to have a private area in which he is master of his own destiny. Rights may be absolute or relative. A positive right is one that has to be provided to the individual. A negative right is one that assures prevention of or protection from harm. There is a complex inter-relation between rights and obligations. Individual rights may conflict with communal rights. The problem of the rights-based theory is that emphasis on individual rights creates an adversarial atmosphere.
2.4 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.
2.5 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.
2.6 The case-based theory is practical decision-making on each case as it arises. It does have fixed philosophical prior assumptions.
3.0 CONVENTIONAL ETHICAL PRINCIPLES
3.1 Ethical principles are axioms that simplify ethical reasoning. Conventional ethical guidelines do not have BACKUP explicit purposes such as are enunciated in the maqasid al shari’at.
3.2 There are 4 basic conventional ethical principles according to Beauchamp and Childress (1994) and these can be shown to correspond to some of the qawai’d al shari’at. The Principle of Autonomy is the power of the patient to decide on medical procedures. The Principle of Non-malefacence 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. Application of the above principles requires ethical rules. All these can be found within only one of the 5 principles of Islamic ethics: the principle of dharar.
3.3 The principle of autonomy states that the patient is the one to make decisions on the choice of treatment and the physician after being given full and relevant information. This requirement fulfils the principle of preventing harm because the patient is, of all those involved in the therapeutic scenario, is the most sincere regarding his self-interest in protecting his life.
3.4 The principles of beneficence and nonmalefacence directly relate to balancing 2 sub-principles of the principle of dharar which are benefit, maslahat, and harm, mafsdaat.
3.5 The principle of justice fulfils the requirements of the principle of dharar by ensuring that nobody should be harmed by unequal treatment or discrimination