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Presentation at a medical ethics course held at the
Security Forces Hospital Riyadh May 14, 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 re-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.