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Lecture by Professor
Omar Hasan Kasule Sr. for 4th
Year Medical Students Faculty of Medicine King Fahad
Medical City Riyadh on March 12th 2012
1.0 STAGES OF RATIONAL SYSTEMATIC PROBLEM SOLVING 1
·
analysis of the environment
·
recognition of the problem
·
identification of the problem
·
determination of the ownership of the problem
·
definition of the problem
·
classification of the problem
·
prioritizing
the problem
·
collection of information
·
making assumptions and forecasts
·
generating decision alternatives
·
Apply laws, fatawa, and principles
·
selection of the best alternative
·
analysis of the impact of the chosen alternative
·
implementation, control of the implementation
·
evaluation of the results.
2.0 AUTHORITATIVE SOURCES
2.1 At the National/International Levels
·
The Mufti of the Kingdom of Saudi Arabia
·
The Grand Ulama Authority
·
The Fiqh Academy of the Organization of the
Islamic Conference
·
The Fiqh Academy of the World
Muslim League
2.2 Local Level
·
Ethics Committee in the Hospital
·
Local Scholar
2.3 Existing Laws and Regulations
·
Code of Medical Ethics by the Saudi Council for Health Specialties
·
Health Professions Practice Regulations by the
Saudi Council for Health Specialties
3.0 SOLUTIONS FROM CLASSICAL SOURCES
3.1 As a source of legislation the Qur’an
provides general foundations and principles. Qur'anic evidence for legal rulings is either qatui, or dhanni. The Qur'an is the primary source
of law. All other recognized sources are secondary to the Qur'an and are
validated by it.
3.2 The
sunnat comes second to the Qur'an as
a primary source of law. The daliil
of the sunnat may be definitive, qatai, or
probable, dhanni. The sunnat is interpreted in the light of
general principles of the Qur'an, the social situation in the prophetic era,
and the Arabic language.
3.3
Ijma and Qiyaas are secondary sources of law. Ijma is agreement of all mujtahids
existing at one time on a particular legal ruling based on nass. It can be ijma sariih or ijma
sukuuti. Qiyas is use of a ruling
of one matter for another matter
when the two share the same illat.
3.4
Other secondary sources
Pre-Islamic
laws, shara'u man qablana, were either abrogated or confirmed by the Qur’an. The word of the companion, qawl al sahabi, is a
source of law under specified conditions. Custom or
precedent, ‘aadat or 'urf, is a source of law if it does not contradict nass, there is ijma on it,
and is in the public interest, and closes the door
to evil. 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 used in mu’amalat but
not ‘ibadat. Maslahat mursalat is public interest based on ra’ay
when there is no nass. Sadd al dhari'at is prohibition of an act that is otherwise mubaah because it has a high probability of leading to haram.
3.5 METHODOLOGY
OF EXTRACTING LEGAL RULINGS, tariqat
istinbat al ahkaam, tariqat al istidlal
Nass
can be muhakkam or mutashabih.
The muhakkam can be ‘aam, khaas (amr and nahy), or mushtarak. Amr can be wajib, manduub,
or mubaah. Nahy can be
haram or makruh. Nahy
implies both batil and fasid in ibadat. In mu’amalat
a fasid transactions is irregular but
not batil and has some legal effect. Legal reasoning uses the tools of
agreement, ashbaahu, difference, furuuqaat,
or exceptions, nadhair,
Conflict of evidences is apparent and not real and is due to different views of
mujtahidiin. It is resolved by the tools of nasakh, tarjih,
or tawfiq. Nasakh is
abrogation of one daliil. by another. Tarjiih is an intellectual
effort to compare two or more
rulings and select the best of them on the basis of strength of daliil. Tawfiq
is combining two contradictory daliil
to give one ruling.
4.0 SOLUTIONS
USING MAQASID AL SHARI'AT
4.1 PROTECTION OF DDIIN
Protection of ddiin is 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. The
principal forms of physical ibadat
are the 4 pillars of Islam: prayer, salat;
fasting, siyaam; pilgrimage, and hajj. A sick or
a weak body can perform none of them
properly. Balanced mental health is necessary for
understanding aqidat and avoiding false ideas that violate aqidat. Thus medical
treatment of mental disorders thus
contributes to ibadat.
4.2 PROTECTION OF LIFE, hifdh al nafs
The primary purpose of medicine is to fulfill the second
purpose of the shari’at, 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 the nutritional functions are well maintained. Medical knowledge is
used in the prevention of disease that impairs human health. Disease treatment
and rehabilitation lead to better quality health.
4.3 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
infertility ensures successful child bearing. The care for
the pregnant woman, perinatal 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.
4.4 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.
4.5 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 a healthy vibrant community. 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. The question may be posed whether the effort to protect life is worth
the cost. The issue of opportunity
cost and equitable resource distribution also arises.
5.0 SOLUTIONS FROM PRINCIPLES OF THE LAW, qawaid al fiqh
5.1 THE
PRINCIPLE OF INTENTION
The
Principle of intention comprises several sub principles. The sub principle that
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
that means are judged with the same criteria as the intentions implies that no
useful medical purpose should be achieved by using immoral
methods.
5.2 THE
PRINCIPLE OF CERTAINTY, qaidat al yaqeen
Medical
diagnosis does cannot reach the legal standard of yaqeen. Treatment decisions
are best on a balance of probabilities. 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.
Existing assertions should continue in force
until there is compelling evidence to change them. Established medical
procedures and protocols are treated as customs or
precedents. What has been accepted as customary over a long time is not
considered harmful unless there is evidence to the contrary. All medical
procedures are considered permissible unless there is evidence to prove their
prohibition. 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.
5.3 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.
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 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.
5.4 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.
5.5 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.