Abstract of
paper to be presented at the 1st Universiti Sains Islam Malaysia International
Conference on Medicine and Health held in Kuala Lumpur 19-20th May 2012 by Dr
Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Department of
Bioethics and Chairman Institutional Review Board King Fahad
Medical City Riyadh, Saudi Arabia. EM: omarkasule@yahoo.com,
WEB: http://omarkasule-tib.blogspot.com
1.0 OVERVIEW
·
Tauhid is
the integrating paradigm that is the basis for everything
·
Governing
doctrines: istikhlaf, taskhiir, isti'mar
·
Ethics relate
to morality; Islamic medical ethics relate to Islam's moral system
·
Morality in
Islam is defined by the Law in most cases
·
The scope of
ethics in Islam is wider because Islam is a comprehensive system
·
The Theory of maqasid
al shari'at provides an underlying basis for Islamic medical practice and
research
·
We have the
theoretical basis we need to develop the empirical experience guided by the qawa'id
al shari'at
2.0 MORALITY:
Divine source:
·
Morality and
ethics in Islam are of divine origin.
·
Human consensus
not deriving from divine legislation cannot be a source of binding ethical
guidelines.
·
All what humans
do it to apply the legal and moral teachings of Islam to practical situations.
3.0
LAW AND MORALITY:
·
In Islam the
law is the expression and practical manifestation of morality.
·
In Islamic law
Islamic law automatically bans all immoral actions as haram and automatically
permits all what is moral or is not specifically defined as halal. European law
does not have to permit all morally acceptable practices neither does it
automatically ban all immoral activities.
4.0
LAW AND ETHICS:
·
Islamic Law is
comprehensive
·
A combination
of moral and positive laws.
·
Strictly
speaking we should not talk about ethics when we use Islamic law because
ethical issues are encompassed within the law.
5.0
ETHICS: STABILITY AND CHANGE:
·
The Islamic
approach to ethics is a mixture of the fixed absolute and the variable.
·
There are fixed
principles that set the parameters beyond which it is absolutely immoral to
operate.
·
Within these parameters, consensus can be
reached on specific moral issues.
6.0
GENERAL AND MEDICAL ETHICS:
·
Islam considers
medical ethics the same as ethics in other areas of life. There is no special
code for physicians.
·
What we call
medical ethics is restating general ethical principles using medical
terminology and with medical applications.
·
The medical
ethical codes can be derived from the basic law but the detailed applications
require further intellectual effort, ijtihad, by physicians.
7.0
RIGHTS AND OBLIGATIONS:
·
Discussion of
ethics brings into focus conflicts between rights and obligations.
·
Rights may be
positive or negative.
·
Rights are
correlated to obligations.
·
Rights of one
person may conflict with those of another one thus creating a moral dilemma.
·
A human is free
to enjoy his or her rights to the maximum as long as that enjoyment causes no
harm to some one else, la yajuuz li sahib haqq al yasta’amila haqqahu fima
yadhurru ghayruhi.
8.0
EVOLUTION OF MEDICAL JURISPRUDENCE, tatawwur al fiqh al tibbi
·
First period (0
to circa 1370H): derivation directly from the Qur’an and sunnat.
·
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, & 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.
9.0
THE THEORY OF MAQASID AL SHARI’AT
·
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 pioneers of maqasid stated
10.0
PIONEERS OF MAQASID AL SHARI'AT
·
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.
11.0
HOW TO SOLVE AN ETHICO-LEGAL PROBLEM I: stages of rational systematic problem
solving
·
The problem: 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
·
Information: collection
of information and making
assumptions and forecasts
·
Authority: Apply
laws, fatawa, and principles
·
Solution
alternatives
·
Solution: selection
of the best alternative, analysis of the impact of the chosen alternative, implementation,
control of the implementation, evaluation of the results.
12.0
HOW TO SOLVE AN ETHICO-LEGAL PROBLEM II: authoritative sources
·
At the
International Levels: The Fiqh Academy of the Organization of the Islamic
Conference
·
At the National
level: National Fatwa Council, laws and regulations
·
At the local
level: Hospital ethics committee, local scholar, regulations
13.0
HOW TO SOLVE AN ETHICO-LEGAL PROBLEM III: solutions from classical sources
·
Qur’an provides general foundations and principles. May be qatui or dhanni.
It is the primary source of law.
·
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.
·
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.
·
Other secondary
sources: (a) 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. (b) Istishaab is continuation
of an existing ruling until there is evidence to the contrary. (c) Istihsaan
is preference for one qiyaas by a mujtahid. (d) Istislaah
is assuring a benefit or preventing a harm used in mu’amalat but
not ‘ibadat.(e) Sadd al dhari'at is prohibition of an act that is otherwise mubaah because it has a high probability of leading to haram.
14.0
SOLUTIONS USING MAQASID AL SHARI'AT 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.
15.0
SOLUTIONS USING MAQASID AL SHARI'AT 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 physiological 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.
16.0
SOLUTIONS USING MAQASID AL SHARI'AT 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.
17.0
SOLUTIONS USING MAQASID AL SHARI'AT 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.
18.0
SOLUTIONS USING MAQASID AL SHARI'AT 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.
19.0
MAQASID IN RESEARCH ETHICS 1: NECESSITIES, NEEDS, and REFINEMENTS: dharuraat;
haajiyaat, & tahsiinaat
· Normal human life cannot exist and continue without dharuuraat.
·
Haajiyat are
for the proper functioning of life beyond the requirements of basic survival.
·
Tahsinaat aim
at achieving a higher level of human dignity.
·
Human
experimentation in order to fulfill dharurat has priority over that research
that aims at fulfilling hajiyat.
·
The Law will
allow taking a higher risk for dharurat than for hajiyat.
·
Experimentation
for refinements may not be considered at all if there is any risk.
·
The 5 dharurat
recognized by the law are preservation of religion, life, progeny, the mind,
and wealth. An example of a dharurat is a life-saving drug like insulin
for the insulin-dependent diabetic.
·
An example of a
haajat is a drug to treat mild anxiety.
·
An example of a
tahsin is a cosmetic cream or female circumcision, al khafdh.
20.0
MAQASID IN RESEARCH ETHICS 1: Purpose of protection of religion, hifdh al din
·
Experiments on
humans become unethical when the scientists involved are not guided by
morality.
·
Thus violation
of the purpose of protecting religion brings cruelty and injustice in its wake.
·
The great
Islamic principle of jarh & ta'adiil / ilm al rijaal does not exist
in modern science
21.0
MAQASID IN RESEARCH ETHICS 2: The purpose of protection of life, hifdh al
nafs
·
Experiments on
humans for the purpose of finding new cures for disease fulfill the purpose of
protecting health and life.
·
Phase 1 and
phase 2 clinical trials may have no direct benefit to the patient but they
provide basic scientific information. Phase 3 trials have potential benefit for
the patient. Phase 4 trials have a general societal benefit.
·
The state has a
responsibility for the life and health of its citizens. It therefore must
promulgate and enforce laws on the conduct of human experiments in order to
prevent abuses.
·
The risks
involved in experimentation may appear to contradict the purpose of preserving
life. Injury or harm in an experiment is only a potential but not a certainty.
Any human experiment will be deemed illegal if there is a 100% certainty of a
hazard.
22.0
MAQASID IN RESEARCH ETHICS 3: The purpose of protection of progeny, hifdh al
nasl
·
Research on
methods of curing infertility fulfils the purpose of protecting progeny.
·
The whole of
medicine especially pediatrics and obstetrics also fulfils this purpose.
·
Good health of
potential parents ensures that they will be healthy enough to bear the next
generation.
·
Good prenatal
and obstetric care ensures delivery of a healthy baby who therefore has more
chances of growing into a healthy adult.
23.0
MAQASID IN RESEARCH ETHICS 4: The purpose of protection of the mind, hifdh
al ‘aql
·
Research on
cure of mental conditions fulfills the purpose of protecting the mind.
·
Research on
other somatic diseases fulfils the same purpose because any disease will
through pain, suffering, and loss of function lead to mental symptoms of
depression and anxiety.
·
Research on
drugs and nutrients that alter the mind is justified in order to protect humans
from such deleterious effects.
24.0
MAQASID IN RESEARCH ETHICS 4: The purpose of protection of wealth, hifdh al
mal
·
In general good
health ensures a healthy workforce that works to generate wealth for the
community.
·
Human
experimentation may lead to safer, more effective, and cheaper methods of
treating disease which saves wealth.
25.0
QAWA'ID IN RESEARCH 1: The principle of intention, qaidat al maqsad
·
The basic
principle is that each action is judged by the intention behind it, al umuur
bi maqasidiha. A research protocol is judged by the underlying objectives
of the researcher as manifest in actual implementation and not the stated
objectives that may be deceptive.
·
Means are
judged with the same criteria as the intentions, al wasail laha hukm al
maqasid. If the intention, qasd, is wrong the means, wasiilah,
is wrong and vice versa. Under this principle a research protocol with
beneficial scientific results will be rejected if the methods used are
unethical.
26.0
QAWA'ID IN RESEARCH 2: The principle of certainty, qaidat al yaqeen
·
Human
experimentation is carried out because of uncertainty about what is the best
treatment. If there is certainty that the current treatment is the best that
there can be, an unlikely practical situation, then there is no legal
justification for further research. Further research cannot commence on the
basis of some doubt about an existing treatment method.
·
According to
the principle that certainty cannot be removed by doubt, al yaqeen la
yazuulu bi al shakk, there must be some empirical evidence of low efficacy
in the current treatment or probable efficacy in the new treatment before an
experiment is authorized.
·
The above
principles can protect against proliferation of human experiments that are
unnecessary and are harmful but yet leave room for those that have a good
prospect of reaching a better treatment modality.
27.0
QAWA'ID IN RESEARCH 2: The principle of injury, qaidat al dharar
·
Human
experimentation has associated potential hazards and risks. These risks have to
be balanced against the injury by disease and the potential benefit from the
new treatment. The basic principle is that injury, if it occurs, should be
relieved, al dharar yuzaal. Thus a clinical trial in search of an
effective cure for a disease is an attempt to remove an injury.
·
Preventive
clinical trials are justified under the principle that an injury should be
prevented as much as is possible, al dharar yudfau bi qadr al imkaan.
·
The new
treatment being sought should not be as harmful as the disease condition
according to the principle that an injury is not relieved inflicting or causing
an injury of the same degree, al dharar la yuzaal bi mithlihi.
28.0
QAWA'ID IN RESEARCH 2: The principle of injury, qaidat al dharar (Continued)
·
Decisions to proceed
with human experimentation involve a careful balancing of benefits and risks.
The easiest situation is when the potential benefit far outweighs the potential
risk, in which case the research proceeds in pursuit of the benefit. If the
risk is equal to the benefit, we use the principle that prevention of a harm
has priority over pursuit of a benefit of equal worth, dariu an mafasid awla
min jalbi al masaalih.
·
If the risk is
more than the benefit for the individual research subject, but there is a larger
societal benefit, we may proceed with the research under the principle that
public interest has priority over individual interest, al maslahat al aamat
muqaddamat ala al maslahat al khaassat.
·
The individual
may have to sustain a harm in order to protect public interest, yatahammalu
al dharar al khaas li dafiu al dharar al aam.
·
In some
situations benefits may not figure in the equation; the consideration being the
injury of the disease against the potential risk of the experiment. The
principle of the law used is to choose the lesser of the two evils, ikhtiyaar
ahwan al sharrain.
29.0
QAWA'ID IN RESEARCH 3:Principle of hardship, qaidat al mashaqqat
·
Hardship
mitigates easing of the sharia rules and obligations, al mashaqqa tajlibu al
tayseer and necessity legalizes the prohibited, al dharuraat tubiihu al
mahdhuuraat. If any of the 5 necessities, al dharuraat al khamsat,
is at risk permission is given to undertake experiments that would otherwise be
legally prohibited.
·
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, al
dharuraat tuqaddar bi qadriha.
·
Necessity
however does not permanently abrogate the patient’s right, al idhtiraar la
yubtilu haqq al ghair.
·
The law asserts
vicarious liability. It is illegal to get out of a difficulty by delegating to
someone else to undertake a harmful act, ma haruma fi’iluhu, haruma talabuhu.
Thus legal action will be brought against all officials in the chain of command
for negligence in experiments in their institution even if they did not
personally take part.
30.0
QAWA'ID IN RESEARCH 4:The principle of
custom or precedent, qaidat al urf
·
The principle
of custom is used to define standards of good clinical practice. The basic
principle is that custom or precedent has legal effect, al aadat muhakkamat.
·
What is
considered customary is what is uniform, widespread, and predominant, innama
tutabaru al aaadat idha atradat aw ghalabat, or is predominant, widespread,
and not what is rare, al ibrat li al ghaalib al shaiu la al naadir.
·
Thus the
standard of clinical care or experimental procedure is what the majority of
reasonable physicians consider as reasonable care and which constitutes a
professional standard.
·
An innovative
therapy is departure from the standard care. It is however allowed under the
law but the physicians will be held liable for any injuries to the patient.
This liability also arises even if standard care were used.
· The Law recognizes that what is customary changes with time, la
yunkiru taghayyur al ahkaam bi taghayyuri al azmaan wa al ahwaal wa al aadaat
wa a’raaf.
31.0 QAWA'ID IN
RESEARCH 5: The doctrine of istishaab:
·
This is
continuation of an existing ruling either affirming, ithbaat, or denying, dafau.
·
Matters are
left as they are until there is evidence to the contrary.
·
Recourse is
made to istishaab if there is no
evidence, daliil.
·
This doctrine has the same impact as the principle of yaqeen discussed
above.
32.0 QAWA'ID IN
RESEARCH 6:The doctrine of istihsaan:
·
The doctrine
operates in a clinical situation in which a physician obtains experimental
evidence about the efficacy of a new treatment but continues to use the old
treatment because of some inclination in his mind.
·
This problem
does not arise if Bayesian inference is used. The experimenter will have to
state a probability of prior belief in the efficacy of the new treatment. The
results of the experiment are then used to generate a posterior probability
from the prior probability. The posterior probability may reinforce or decrease
the original assumption.
·
In this way
prior clinical experience or judgment is combined with new experimental
evidence to reach a practical conclusion.
33.0 QAWA'ID IN
RESEARCH 6a: The doctrine of benefit, istislaah:
·
Istislah is
obtaining a benefit, jalb manufa'at,
and preventing a harm, dafiu mafsadat.
·
Consideration
of maslahat arises when we have to compare an existing to a new
innovative treatment. The potential benefit from the new treatment must be more
than the standard treatment for the experiment to be allowed to proceed.
·
Consideration
of maslahat also distinguishes a patient as a subject from a healthy volunteer;
the former may get some personal benefit from the experiment since experimentation
is combined with care whereas the latter has no benefits at all but may be
exposed to hazards.
·
Therapeutic
research has immediate benefits whereas the benefits of non-therapeutic
research are remote. In non-therapeutic research, the subjects are volunteers
who may be healthy with or patients.
34.0 QAWA'ID IN
RESEARCH 6b: The doctrine of benefit, istislaah:
·
In a randomized
trial, subjects who receive a placebo have no benefit and no hazard but of they
are patients they are missing the potential benefits of either the traditional
or the innovative treatment.
·
Research
ethics: unethical research violates the purpose of hifdh al ddiin.
Research to discover new or better therapies fulfills the purpose of preserving
life. Research to treat infertility or improve obstetric and pediatric outcomes
fulfills the purpose of protecting progeny. Research to alleviate psychiatric
disease fulfills the purpose of protecting the mind. Research on cheaper therapies
fulfills the purpose of preserving resources. The principle of intention that
requires that the declared research objectives correspond to the underlying
intentions and that no immoral means are used for a good objective. According
to the principle of yaqiin new research must be started only if there is
empirical evidence of need. The principle of dharar requires that the
benefits of research to the individual and the community far outweigh its
potential harm. The principle of hardship would allow risky experiments for the
purpose of saving further lives. The principle of 'aadat requires that
generally accepted procedures of research be followed. The doctrine of
continuity, istishaab, ensures stability and order by requiring that
existing therapies until there is evidence to the contrary. The doctrine of
personal preference, istihsaan, allows personal preference of one’s
evidence over another one. Under the doctrine of public interest, istislaah,
research subjects on placebo treatment or those in non-therapeutic research
undertake risk in the public interest.