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Presentation
at a training program ‘Applying the Principles of Ethics to Clinical
Practice:’ held at Aramco Dhahran April 6, 2015 by Professor Omar Hasan
Kasule Sr. MB ChB (MUK). MPH (Harvard), DrPH (Harvard) Chairman of the Ethics
Committee King Fahad Medical City.
Introduction:
·
This paper presents a system of ethical theories and ethical principles
developed and used in South East Asia and other parts of the world over the
past 17 years.
·
A basic premise of this framework is that ethics is embraced fully
within the ambit of the Law since Islamic law contains both positive law and
moral law.
·
Under Islamic law the legal and the moral are perfectly equivalent;
every moral is legal and vice versa and every immoral is illegal and vice
versa.
Methods:
·
The study aimed at discovering ethical theories and ethical principles
in Islamic Law to compare with generally accepted theories and principles.
·
Results first presented at the Scientific Conference of the Jordanian
Islamic Medical Association in Amman in 2004 and have been presented at many
conferences in other countries.
·
Two sources of Islamic Law were used: (a) The purposes of the Law (maqasid
al shari’at) developed starting in the 5th Islamic century as
the basis for an Islamic ethical theory and (b) Principles of the Law (qawa’id
al fiqh), as the basis for ethical principles.
Purposes of the Law (maqasid al shari’at) 1: early
beginnings
·
The Law has 5 governing higher purposes that are its legal theory; they
govern all details and branches of the Law.
·
Development of this legal theory can be traced to the 5th
Islamic century and the pioneers were Shaikh al Haramain al Juwayni and his
student Hujjat al Islam Abu Hamid AlGhazzali. Contributions were made 2
centuries later by Shaikh al Islam Ibn Taymiyah and his student Abu Qayyim al
Jawziyat.
Purposes of the Law (maqasid al shari’at) 2: later
development
·
The theory was formulated systematically in the form it is used today
by the Spanish Andalusian scholar of the Maliki School of Law, Abu Ishaq
AlShatibi in his 8th century legal manual Almuwafaqaat fi usuul al shari’at.
·
The theory was not used a lot in the past 7 centuries because the legal
dilemmas that arose were simple and could be resolved by existing legal texts
and precedents.
·
Modern medical technology has given rise to many legal and ethical
dilemmas that can be resolved only by reference directly to the legal theory.
The 5 Purposes of the Law = ethical theory
·
For an act to be considered ethical, it must conform to or not violate
one of the 5 major purposes of the Law.
·
The advantage is that one internally consistent legal or ethical theory
is applied to various situations.
·
The 5 purposes aim at protecting (hifdh), preserving (ibqaa),
and promoting (tatwiir) of 5 entities that among them cover all aspects
of human endeavor and medical treatment.
The 5 Purposes of the Law = ethical theory
·
Morality/religion, hifdh al ddiin;
·
Life and health, hifdh al nafs;
·
Progeny, hifdh al nafs;
·
Intellect, hifdh al ‘aq
·
Resources, hifdh al maal.
The 5 Principles of the Law (qawa’id al fiqh) 1
·
The principles were developed by legal scholars from basic sources of
the Law by inductive reasoning. They provide quick tools for reasoning out
complex cases.
·
They were formulated in a systematic way in the 19th
Gregorian century in the Turkish Ottoman Legal gazette called Majallat al
Ahkaam Aladliyyat.
·
These principles were detailed for commercial transactions; the
challenge today it to develop them in detail for medical application.
The 5 Principles of the Law (qawa’id al fiqh) 2
·
The principles help in resolving ethical dilemmas in which the purposes
may be apparently contradictory such as prolongation of life in the intensive
care unit (protection of health) that is prohibitively expensive ((protection
of resources).
·
They also provide more detailed and specific guidelines on matters
covered in general by the Purposes.
·
Each of these principles has many sub-principles that cover the whole
spectrum of ethical dilemmas.
The 5 Principles of the Law = Islamic ethical
principles 1
·
Under the principle of certainty of intention (qa’idat al qasd)
actions are judged by their inner intentions and motivations and not by their
external manifestations.
·
Under the principle of certainty (qa’idat al yaqeen) decisions
must be evidence-based.
·
Under the principle of injury (qa’idat al dharar) the benefits (maslahat)
of an action must out-weight its harm (mafsadat) and if the two are of
equal worth the action is not taken.
The 5 Principles of the Law = Islamic ethical
principles 2
·
Under the principle of hardship (qa’idat al mashaqqat) legal prohibitions
are temporarily set aside in order to undertake actions that will preserve
life.
·
Under the principle of custom (qa’idat al ‘aadat) existing
consensus guidelines a standard operating principles should be followed because
they have the force of Law.
The 4 ethical principles vs the Islamic ethical
principles
·
The 4 principles of Beaumont and Childress are subsumed under one
Islamic principle of preventing injury (qa’idat al dharar).
·
AUTONOMY: The patient has the right of autonomy
because she/he has his best interests at heart and cannot willfully and
knowingly take a harmful decision.
·
BENEFICENCE / NONMALEFACENCE: Robust
rules for balance of injury and benefit in cases of ethical dilemmas.
·
JUSTICE: Assurance of justice prevents harm due to
injustice.
Conclusion and recommendations:
·
Islamic Law has formulations comparable to international formulations
that adequately cover the needs of ethical theory and principles in ethical
analysis.
·
Ethical analysis in Muslim countries / communities will be easier and
more acceptable if approached from Islamic Law.
Decision Making
·
No new decisions can be taken without new evidence.
·
According to Article 4 certainty cannot be voided by doubt (al
yaqiin la yazuulu bi al shakk).
·
According to Article 74 there is no recognition of imagination or
guessing (la ‘ibrat li al tawahhum).
·
According to article 5, without new evidence things should be left as
they are (al asl baqaau ma kaana ala ma kaana) and according to Article
6 old things are left as they are (al qadiim yutraku ala qidamihi).
·
The exception is when dealing with injury that must be removed
immediately and must not be considered an old phenomenon that must be left
alone. According to Article 7 injury cannot be old (al dharar la yakuun
qadiiman).
·
If an event or injury is found it should be considered to have occurred
at the nearest possible time according to Article 11 (al asl idhhafat al
hadith ila aqrab aqwaatuhi)
End of Life Decisions
·
Each health care giver is responsible for his decisions.
·
If an action is illegal it is equally forbidden to undertake it as it
is to ask someone else to undertake it according to Article 35 (ma haruma
fi’iluhu haruma talabuhu).
·
In all situations decisions should follow established guidelines
according to Article 41 (al ‘aadat muhakkamat).
·
In case of life support, it is easier not to start than to have to stop
according to Article 55 (yughtafar fi al baqaa ma la yughtafar fi al ibtida).
·
Continuation of an existing action is easier than starting a new one
according to Article 56 (al baqau ashalu min al ibtida).
Emergency Treatment
·
The principle of necessity, qa'idat al dharurat, allows waiving
normal practices like informed consent to protect life.
·
The principle of intention, qa'idat al yaqeen, requires that all
intervention and research must be based on evidence as much as is possible in
the emergency situation.
·
The principle of injury, qa'idat al dharar, requires minimizing
harm while maximizing benefits in emergency procedures, protection of privacy
and confidentiality.
Health Insurance
·
Health insurance planned and implemented according to the Law is
considered a form of mutual self help, takaful ijtimae.
·
The purpose of protecting life, maqsad hifdh al nafs, makes
equitable access to the basic and necessary health services, khadamaat
sihhiyyat assasiyyat wa dharuriyyat, a basic right of every citizen to be
fulfilled by the family, the community, and the state in that order of
increasing responsibility.
·
Health services beyond the basic necessary are considered a privilege,
they fall under the categories of needs, haajiyaat; complements, mukammilaat,
and embellishments, tahsinaat; can be provided to each according to
economic ability.
Do Not Resuscitate ( DNR )
·
Consideration of DNR should relate exclusively to cardio-respiratory
failure. Practical issues arising in the implementation of DNR from the
perspectives of maqasid al shari’at and qawa’id al shari’at.
·
The issues covered relate to uncertainties, qa’idat al yaqeen,
protection of life, hifdh al nafs; protection of the patient from
potential harm, qa’idat al dharar; conservation of resources, hifdh
al mal.
·
DNR orders shall be written for patients in an established death
process i.e. cardio-respiratory failure beyond Young’s point ‘z’. Patients with
terminal incurable conditions who develop acute and reversible
cardio-respiratory arrest should be resuscitated if they will have a nett
benefit from CPR lasting for a reasonable time.
Brain Death
·
Early determination of death by use of brain death criteria is
motivated by the need to harvest transplantation organs earlier, save intensive
care resources by earlier cessation of life support, and obtaining tissues for
research before deterioration.
·
These motives would violate the principle of intention, qa’idat al
qasd, which requires that actions be judged by underlying intentions and
that the end does not justify the means.
·
In this case the nobility of the ends and their public interest are
motivating factors.
Case - 1
In a measles mini-epidemic in the South of KL, the MOH
orders vaccination of all children with no immunization records. A pediatrician
living at the UM campus with non-school going toddlers refuses to take his
children for vaccination arguing that the risk of vaccination complications was
higher for his children than the risk of measles infection.
Case - 2
A urologist with 20 years’ experience in renal
transplant refused to donate one of his kidneys to his identical twin brother
who had found no other matching kidney. The Medical Council started
de-registration proceedings for failure to give benefit obligatory on all
physicians.
Case - 3
A new company in advertised on TV and in newspapers
offering direct genetic testing services. Consumers would pay for a kit using a
credit card and they would use the kit to collect a sample of blood by finger
prick and send it back by mail. Results would be sent back after a week.
Case - 4
A nurse manager has just discovered that his
colleague, a surgeon, is HIV+ve, but has kept the information secret and
continued operating on patients taking infection control precautions. An
emergency case requiring immediate surgery is wheeled into the emergency room
at midnight and there is no other surgeon available.
Case - 5
An elderly patient with advanced esophageal cancer
refused insertion of a nasogastric feeding tube and insisted on taking sold
food that he could not swallow. He said he would prefer to die from starvation
than accept the tube. The surgeons sedated him and inserted the tube without
his consent and kept him under sedation so that he cannot complain.