A.) WORKSHOP READING MATERIAL

10.0 PHYSICIAN ETIQUETTE, Adab Al Tabiib

10.1 Good Doctor Etiquette With ‘Patients And Their Families’

Bed-side visits

The physician-patient interaction is both professional and social. The bedside visit fulfills the brotherhood obligation of visiting the sick. The human relationship with the patient comes before the professional technical relationship. It involves reassurance, psychological and social support, show of fraternal love, and sharing. A psychologically satisfied patient is more likely to be cooperative in taking medication, eating, or drinking. The following are recommended during a visit: greeting the patient, dua for the patient, good encouraging words, asking about the patient’s feelings, doing good/pleasing things for the patient, making the patient happy, and encouraging the patient to be patient, discouraging the patient from wishing for death, nasiihat for the patient, and reminding the patient about dhikr. Caregivers should seek permission, idhn, before getting to the patient. They should not engage in secret conversations that do not involve the patient.

Etiquette of the care-giver

The caregiver should respect the rights of the patient regarding advance directives on treatment, privacy, access to information, informed consent, and protection from nosocomial infections. Caregivers must be clean and dress appropriately to look serious, organized and disciplined. They must be cheerful, lenient, merciful, and kind. They must enjoin the good, have good thoughts about the patients and avoid evil or obscene words. They must observe the rules of lowering the gaze, and seclusion. Caregivers must have an attitude of humbleness. They cannot be emotionally-detached in the mistaken impression that they are being professional. They must be loving and empathetic and show mercifulness but the emotional involvement must not go to the extreme of being so engrossed that rational professional judgment is impaired. They must make dua for the patients because qadar can only be changed by dua. They can make ruqya for the patients by reciting the two mu’awadhatain or any other verses of the Qur’an.

Caregivers must seek permission when approaching or examining patients. Medical care must be professional, competent, and considerate. Medical decisions should consider the balance of benefits and risks. The general position of the Law is to give priority to minimizing risk over maximizing benefit. Any procedures carried out must be explained very well to the patient in advance. The caregiver must never promise cure or improvement. Every action of the caregiver must be preceded by basmalah. Everything should be predicated with the formula inshallah, if Allah wishes. The caregivers must listen to the felt needs and problems of the patients. They should ask about both medical and non-medical problems. Supportive care such as nursing care, cleanliness, physical comfort, nutrition, treatment of fever and pain are as important as the medical procedures themselves and are all what can be offered in terminal illness. Caregivers must reassure the patients not to give up hope. Measures should be taken to prevent nosocomial infections.

Etiquette of interaction between genders

Both the caregiver and patient must cover awrat as much as possible. However, the rules of covering are relaxed because of the necessity, dharurat, of medical examination and treatment. The benefit of medical care takes precedence over preventing the harm inherent in uncovering awrat. When it is necessary to uncover awrat, no more than what is absolutely necessary should be uncovered. To avoid any doubts, patients of the opposite gender should be examined and treated in the presence of others of the same gender. The caregivers should be sensitive to the psychological stress of patients, including children, when their awrat is uncovered. They should seek permission from the patient before they uncover their awrat. Caregivers who have never been patients may not realize the depth of the embarrassment of being naked in front of others.

Medical co-education involves intense interaction between genders: Teacher-student, student-student, and teacher-teacher. Interacting with colleagues of the opposite gender raises special problems: norms of dress, speaking, and general conduct; class-room etiquette; social interaction; laboratory experiments on fellow students; learning clinical skills by examining other students; and the operation theatre. Medical personnel of opposite genders should wear gender-specific garments during surgical operations because Islam frowns on any attempt to look like the opposite gender. Shari’at guidelines on interaction with patients of the opposite gender should be followed. Taking history, physical examination, diagnostic procedures, and operations should preferably be by a physician of the same gender. In conditions of necessity a physician of the opposite gender can be used and may have to look at the ‘awrat or touch a patient. The conditions that are accepted as constituting dharuurat are: skills and availability. The preference between a Muslim of opposite gender vs non-Muslim of same gender depends on the local situation.

Dealing with the family

Visits by the family fulfill the social obligation of joining the kindred and should be encouraged. The families are honored guests of the hospital with all the shari’at rights of a guest. The caregiver must provide psychological support to family because they are also victims of the illness because they are anxious and worried. They need reassurance about the condition of the patient within the limits allowed by the rules of confidentiality. The family can be involved in some aspects of supportive care so that they feel they are helping and are involved. They should however not be allowed to interrupt medical procedures. Caregivers must be careful not to be involved in family conflicts that arise from the stresses of illness.

10.2 Good Doctor Etiquette In The Health Care Team

Etiquette of teaching & learning in the health care team

The hospital health care team is complex and multi-disciplinary with complementary and inter-dependent roles. Members have dual functions of teaching and delivering health care. Most teaching is passive learning of attitudes, skills, and facts by observation. Teachers must be humble. They must make the learning process easy and interesting. Their actions, attitudes, and words can be emulated. They should have appropriate emotional expression, encourage student questions, repeat to ensure understanding, and not hide knowledge. The student should respect the teacher for the knowledge they have. They should listen quietly and respectfully, teach one another, ask questions to clarify, and take notes for understanding and retention. They should stay around in the hospital and with their teachers all the time to maximize learning.

Etiquette of care delivery in the health care team

Each member of the team carries personal responsibility with leaders carrying more responsibility. Leaders must be obeyed except in illegal acts, corruption, or oppression. Rufaidah, the first Muslim nurse, was a good model of etiquette. She was kind, empathetic, a capable leader and organizer, clinically competent, and a trainer of others. Besides clinical activities, she was a public health nurse and a social worker assisting all in need. The human touch is unfortunately being forgotten in modern medicine as the balance is increasingly tilted in favor of technology.

The health care team: general group dynamics

Basic duties of brotherhood and best of manners must be observed. Encouraged are positive behaviors (mutual love, empathy, caring for one another; leniency, generosity, patience, modesty, a cheerful disposition, calling others by their favorite names, recognizing the rights of the older members, and self control in anger. Discouraged are negative attributes (harshness in speech, rumor mongering, excessive praise, mutual jealousy, turning away from other for more than 3 days, and spying on the privacy of others).

The health care team: special group dynamics

Gender-specific identity should be maintained in dress, walking, and speaking. Free mixing of the genders is forbidden but professional contact within the limits of necessity is allowed. Patients of the opposite gender are examined in the presence of a chaperone. The gaze should be lowered. Modest covering must be observed. Display of adornments that enhance natural beauty must be minimized.

10.3 ‘Doctor Misconduct’

Abuse of professional privileges

Un-ethical research on patients is abuse of professional privileges. Abuse of treatment privileges consists of unnecessary treatment, iatrogenic infection, and allowing or abetting an unlicensed practitioner. Abuse of prescription privileges is manufacturing, possessing, and supplying a controlled drug without a license, prescription of controlled drugs not following procedures, diverting or giving away controlled substances, dispensing harmful drugs, sale of poisons, and writing prescriptions using secret formulas.

Financial fraud may be pharmacy fraud (billing for medicine not supplied), billing fraud (billing for services not performed), equipment fraud (using equipment that is really not needed or using equipment of poorer quality), or supplies fraud. It is also illegal to get financial advantage from prescriptions to be filled by pharmacies owned by the physician. Kick-backs are unethical and illegal. False or inaccurate documentation is a breach of the law and includes issuing a false medical certificate of illness, false death certification, and false injury reports.

Court action could be brought against a physician for the following crimes against the person: manslaughter (voluntary & involuntary); euthanasia (active and passive): battery for forced feeding or treatment; criminal liability for patient death; induced non-therapeutic abortion; iatrogenic death; abusive therapy involving torture; intimate therapy; rape and child molestation; and sexual advances to patients or sexual involvement. The physician-patient relation requires that the physician keeps all information about the patient confidential. Breach of confidentiality can be done only in the following situations: court order, statutory duty to report notifiable diseases, statutory duty to report drug use, abortions, births, deaths, accidents at work, disclosure to relatives in the interest of the patient, disclosure in the public interest, sharing information with other health professionals, disclosure for the purposes of teaching and research,  and disclosure for the purposes of health management.

Private mis-conduct derogatory to reputation, kharq al muru’at

Breach of trust is a cause for censure because a physician must be a respected and trusted member of the community. Sexual misbehavior such as zina and liwaat are condemned. Fraudulent procurement of a medical license, sale of medical licenses, and covering an unqualified practitioner indicate bad character. Physicians can abuse their position by abuse of trust (eg harmful or inappropriate personal and sexual relations with patients and their families), abuse of confidence (eg disclosure of secrets), abuse of power/influence (eg undue influence on patients for personal gain), and conflict of interest (when the physician puts personal selfish interests before the interests of the patient). Other forms of misconduct are in-humane behavior such as participation in torture or cruel punishment, abuse of alcohol and drugs, behavior unbecoming, indecent behavior, violence, and conviction for a felony.

Public professional mis-conduct

Physicians in private practice must adopt good business practices. Halal transactions are praised[1]. An honest businessman is held in high regard[2]. Leniency in transactions is encouraged[3]. Full disclosure is needed in any transaction[4]. Measures and scales must be fulfilled[5]. Bad business practices are condemned. There is no blessing in immoral earnings[6]. Selling over another’s sale is prohibited[7]. Cheating is condemned[8]. Also condemned are financial fraud including criminal breach of trust, riba on bills, fee splitting, and bribery[9]. Sale of goodwill of a practice is allowed. Also allowed is agreement among partners that they will not set up a rival practice on leaving the partnership. Entering into a compact with pharmacists or laboratories involving fee splitting and unnecessary referrals is not moral. Treatment regimens can not be patented as an intellectual property. Physicians are entitled to a reasonable fee[10]. Medical fees cannot be fixed by government because the Prophet refused to fix prices[11].

10.4 Medical Malpractice / Negligence

Description and definitions

Malpractice is failure to fulfill the duties of the trust put on the physician. The term malpractice includes the legal concept of medical negligence. Negligence is breach of duty owed by the physician to the patient resulting in damage or injury. Negligence is defined according to the customary standards of care that are established by the profession.

There are 4 elements in medical negligence: discharge of duty, breach of duty, injury, and burden of proof. Medical negligence may be breach of duty resulting in causation of injury which calls for damages.

Negligence may also arise as battery which is injury due to intentional tort (a civil wrong in which liability is based on unreasonable conduct). The intentional torts are assault, battery, treatment without informed consent, false imprisonment or confinement, intentional infliction of emotional distress, and defamation (slander if verbal and libel if written).

Negligence also arises from abandonment of a patient or breach of confidentiality. Negligence also arises in liability for drugs and devices and as vicarious liability. A physician is also found negligent for negligent referrals, failure to warn about risks, and failure to report a notifiable disease. Negligence also covers professional errors. The errors may be ordinary or extraordinary. They may be harmful or non-harmful.

Types of liability

The following are types of liability: physician liability, professional errors, neglect of duty, vicarious liability, liability for defective products, and special types of causation. Physician liabilities include lack of informed consent, errors, and neglect of duty. Professional errors may be ordinary or extra ordinary. They may be harmful or non-harmful. Informed consent or expressed instruction of the patient does not relieve the physician of liability for errors. The physician is liable for discontinuing treatment without justification. Vicarious liability is when someone is made liable for a negligence they did not personally perform for example the employer. The supplier is liable for defective products.

Basis of liability

Liability is based on breach of contract, the tort of negligence, and breach of confidence. The physician-patient relationship establishes a contractual relationship that can be breached. The tort of negligence is invoked when there is breach of duty that leads to injury of either the patient or a third party. Three ingredients must be proved: (a) the physician owed a duty of care (b) the physician failed in that duty (c) the failure resulted in damage. The physician may also be liable for breach of confidence. The physician-patient relationship is based on confidence.

Malpractice suits: court procedure

The statute of limitations states that there is a fixed period after the breach during which tort action can be brought. The legal process follows several steps: filing a complaint by the plaintiff, serving a summons on the defendant, plea of guilty or not guilty by the defendant, discovery (lawyers for both sides collect more information by interviews, examinations, and collection of documents), opening statements at the trial by both sides, testimony and examination of witnesses, closing arguments, and judgment. The burden of proof of breach of standard of care lies with the plaintiff. Proof of breach is based on a balance of probabilities, on the ‘but-for’ test, and on causation of damage or risk. Physician defense against malpractice suits rests on absence of duty, no breach of duty, lack of causation, and lack of damage. Instead of a trial, alternative dispute resolution procedures may be used: arbitration, mediation using an expert facilitator, fact finding and investigation of the case by an expert. Damages can be awarded for personal injury, death, wrongful birth or wrongful life, emotional distress, economic loss, and breach of confidence.

Avoiding / prevention of malpractice suits

Malpractice suits can be avoided by obtaining and maintaining registration, sticking to defined professional standards of care, peer review, quality assurance, use of protocols, defensive medicine and politeness with patients. The best protection against medical negligence is the conscience of all health care workers to make sure that mistakes do not occur. Well written records can be a defense for the physician.

10.5 Legal Tests For Negligence: Bolam As Modified By Bolitho’

THE BOOLAM CASE

In a famous case tried in 1957, important legal principles were pronounced by the judge and they have subsequently become part of the law.

The background to the case was that Bolam, a mentally ill patient, suffered fractures during electroconvulsive treatment. This type of treatment was accepted as a normal treatment for mental disorders at that time. The patient had consented to the procedure.

When he suffered a fracture he sued in court. Two problems arose. He was not given full information when he was making his consent because he was not told about the risk of fracture associated with electroconvulsive therapy which was estimated at 1 in 10,000.  He was also not given a muscle relaxant that decreases the risk of fracture during the procedure.

At that time, there exist differences in professional opinions. Some physicians considered informing the patient about the risk of fracture and using a muscle relaxant as necessary whereas others did not think so. There was therefore no single standard of care against which the actions of the attending physician could be judge to find him negligent or not negligent.

The judge ruled that doctors could not be found negligent if they acted according to a professional opinion accepted by a reasonable body of medical opinion even if there could exist a contrary opinion by another responsible body of medical opinion.

THE BOLITHO CASE

In a subsequent case of Bolitho, a patient who suffered brain damage because the doctor failed to intubate, the court ruled that doctors are expected to follow responsible medical opinion but would not be found negligent in cases in which that opinion did not stand up to logical analysis. The court thus set a principle that the court could over-rule medical opinion that was not logical in a specific case. The implication of this was that medical opinion was not the final arbiter of the standard of care to be used in defining negligence.

NOTES

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[1]   Zaid Hadith 539

[2]   Tirmidhi Kitaab al Buyu’u  Baab 4

[3]   Bukhari Kitaab al Buyu’u  Baab 16

[4]   Ibn Majah Kitaab al Tijaarat Baab 45

[5]   Muwatta Kitaab al Buyu’u Hadith 99

[6]   Darimi Kitaab al Riqaaq Baab 60

[7]   Bukhari Kitaab al Buyu’u Baab 58

[8]   Bukhari Kitaab al Buyu’u  Baab 19

[9]   Abudaud Kitaab al Aqdhiyat  Baab 4

[10] Bukhari Kkitaab al ijarah Baab 16

[11] Abudaud Kitaab al Buyu’u  Baab 49

A.) WORKSHOP READING MATERIAL

9.0 ISSUES OF PRIVACY, CONFIDENTIALITY, AND CONSENT

9.1 Notes On ‘Privacy And Confidentiality’

Privacy and confidentiality are often confused. Privacy is the right to make decisions about personal or private matters and blocking access to private information. The patient voluntarily allows the physician access to private information in the trust that it will not be disclosed to others. This confidentiality must be maintained within the confines of the Law even after death of the patient. Confidentiality falls under the teaching of the prophet about keeping secrets.

In routine hospital practice, many persons have access to confidential information but all are enjoined to keep such information confidential. Confidentiality includes medical records of any form.

The patient should not make unnecessary revelation of negative things about himself or herself.

The physician can not disclose confidential information to a third party without the consent of the patient.

Information can be released without the consent of the patient for purposes of medical care, for criminal investigations, and in the public interest.

Release is not justified without patient consent for the following purposes: education, research, medical audit, employment or insurance.

9.2 Consent And Refusal Of ‘Treatment For Competent Adults’

No medical procedures can be carried out without informed consent of the patient except in cases of legal incompetence. The patient has the purest intentions in decisions in the best interests of his or her life. Others may have bias in their decision-making.

The patient is free to make decisions regarding the choice of physicians and treatments. Consent can be by proxy in the form of the patient delegating decision making or by means of a living will.

The patient must be free and capable of giving informed consent. Informed consent requires disclosure by the physician, understanding by the patient, voluntariness of the decision, legal competence of the patient, explanation of all alternatives, recommendation of the physician on the best course of action, decision by the patient, and authorization by the patient to carry out the procedures. Consent is limited to what was explained to the patient except in an emergency.

Refusal to consent must be an informed refusal (patient understands what he is doing). Refusal to consent by a competent adult even if irrational is conclusive and treatment can only be given by permission of the court. Doubts about consent are resolved in favor of preserving life.

Spouses and family members do not have an automatic right to consent for a competent patient. A spouse cannot overrule the patient’s choice.

Advance directives, proxy informed consent by the family are made for the unconscious terminal patient on withholding or withdrawal of treatment.

Physician assisted suicide, active euthanasia, and voluntary euthanasia are illegal even if the patient consented.

A do not resuscitate order (DNR) by a physician could create legal complications.

The living will has the following advantages: (a) reassuring the patient that terminal care will be carried out as he or she desires (b) providing guidance and legal protection and thus relieving the physicians of the burden of decision making and legal liabilities (c) relieving the family of the mental stress involved in making decisions about terminal care. The disadvantage of a living will is that it may not anticipate all developments of the future thus limiting the options available to the physicians and the family.

The device of the power of attorney can be used instead of the living will or advance directive.

Decision by a proxy can work in two ways: (a) decide what the patient would have decided if able (b) decide in the best interests of the patient.

Informed consent is still required for physicians in special practices such as a ship’s doctor, prison doctor, and doctors in armed forces. Police surgeons may have to carry out examinations on suspects without informed consent.

9.3 Consent And Refusal Of ‘Treatment For Incompetent Adults And Children’

Consent for children

Competent children can consent to treatment but cannot refuse treatment. The consent of one parent is sufficient if the other one disagrees. Parental choice takes precedence over the child’s choice. The courts can overrule parents. Life-saving treatment of minors is given even if parents refuse. Parental choice is final in therapeutic or non-therapeutic research on children.

Mental patients

Mental patients cannot consent to treatment, research, or sterilization because of their intellectual incompetence. They are admitted, detained, and treated voluntarily or involuntarily for their own benefit, in emergencies, for purposes of assessment, if they are a danger to themselves, or on a court order. Suicidal patients tend to refuse treatment because they want to die.

The unconscious

For patients in coma, proxy consent by family members can be resorted to. If no family members are available, the physician does what he as a professional thinks is in the best interest of the patient.

There are many disputes about withdrawing nutrition, hydration, and treatment in a persistent vegetative state since the chance of recovery is low. There is no moral difference between withholding and withdrawing futile treatment.

Obstetrics

Labor and delivery are emergencies that require immediate decisions but the woman may not be competent and proxies are used. Forced medical intervention and cesarean section may be ordered in the fetal interest. Birth plans can be treated as an advance directive.

9.4 Suicide

Abstract

Suicide can be direct, deliberate, and violent relating to major depression, or can be slow and indirect relating to risky lifestyles. Islam prescribes severe legal and moral sanctions for suicide. Direct suicide related to psychogenic factors can be prevented by cognitive understanding of basic Islamic principles relating to life and belief in pre-destination. Life belongs to Allah and cannot be taken by a human. Belief in pre-destination enables a believer to understand and positively cope with adverse life experiences thus preventing resort to suicide.

Two forms of suicide

There are two ways of taking one’s life: direct and indirect. The direct is usually called suicide and involves deliberate violent measures of life termination. The underlying motivating factors may be pain, depression, or loss of hope. Some cases of suicide may be due to mental disease or temporary loss of sanity due to use of psychoactive substances. The indirect form of taking life results from pursuit of unhealthy life-styles that endanger life like cigarette smoking, use of alcohol, careless driving, refusal of immunization, neglect of medical care, and poor nutrition. Death is not as violent and does not occur immediately. The number of people who die from such slow suicide is far more than those who take violent measures to terminate their lives. Our discussion will be confined to violent suicide as a result of adverse life experiences.

Legal rulings on suicide

Suicide is condemned. Humans who attempt suicide commit a major crime of trying to arrogate to themselves power and privileges that are in the preserve of Allah alone. The Qur’an forbids self-destruction[1]. Anybody who kills himself with a metal weapon will be punished with the same weapon in the hereafter[2] and will be denied entry into paradise[3]. The funeral prayer is not offered for a deceased who killed himself[4]. The authorities may impose a disciplinary punishment for a person who attempts suicide and fails.

Prevention of suicide by cognitive understanding

Ownership of life: Understanding that life belongs to Allah will dissuade a person from attempting suicide. Life belongs to Allah and not the human. Allah gives and takes away life[5]. Humans are only temporary custodians of life enjoined to take good care of it. Humans have no control over death. Death is in Allah’s hands[6]. Humans therefore have no right to destroy their life or that of any other human. Doing so is one of the greatest transgressions.

Sanctity of life: Respecting the sanctity of life will dissuade a person from suicide. The sanctity of life is guaranteed by the Qur’an[7]. The life of each single individual whatever be his or her age, social status or state of health is important and is as equally important as the life of any other human[8]. Protection of life is the second most important purpose of the shari’at coming second only to the protection of the diin. It has priority over any other mundane consideration.

Prevention of suicide by belief in pre-destination

Belief in pre-determination: Belief in pre-determination can enable people to cope with adverse life events without resorting to suicide. They understand that all events are part of a divine plan. They believe that everything is fixed in advance[9] [10] and all events are under Allah's pre-determination[11]. They believe that pre-determination covers both the good and the bad[12]. They know that all human affairs are in the hands of Allah[13] and that the human should therefore seek support from Allah and surrender all affairs to Him[14].

Benefits of belief in pre-determination: Belief in pre-determination has many benefits that make human life happier and easier. It prevents a person from thinking of suicide in case of adverse life experiences.  The first benefit is that the human who believes in pre-determination will be rich in his heart because he will know that what he has is what Allah gave him and will not hanker over what he does not have[15]. The second benefit is to avoid excessive joy and sadness[16]. This is because the believer knows that all is from Allah and will praise Allah for either the good or the bad. He also knows that Allah gives and takes away, and that life is cyclical. Adversity may be followed by prosperity and vice versa.

Meaning of qadar and qadha: Qadar is pre-event and refers to pre-determination or pre-fixing of events. Qadha is post event and refers to the empirical or practical occurrence of what was pre-determined by qadar. There are 2 stages in the occurrence of any event. In the stage of qadar Allah pre-determines and knows what will happen but the human does not. The human is therefore enjoined to struggle as best as he can to achieve a desired objective which may be wealth, health, or progeny. In his ignorance of pre-determination, a human cannot stop his struggles arguing that qadar is fixed. However after the event  has occurred, the believer is now in the stage of qadha and has to accept what happened and knows that it is with Allah’s permission[17] and exercises patience[18].

Limited human knowledge: In practice the limited knowledge of humans does not enable them to tell the end of events. What may appear an adverse life event may turn out to be good eventually. Humans cannot know for sure what is good and what is bad for them. They have to believe that all is from Allah[19] and that good and bad events are both a test for humans[20]. A believer will praise Allah (al hamd li al llaah) equally for both ‘good’ and ‘bad’ events or experiences because he knows they are all part of pre-destination. The terms ‘good’ and ‘bad’ in human experience and knowledge are relative. What may appear to be good may turn out to be bad[21]. What may appear to be bad may turn out to be good[22]. Humans can not see the whole picture. They may see some aspects of the whole picture and judge them to be good or bad. If they had knowledge of the whole picture and the correct context they would have interpreted the observed events or phenomena differently.

Conclusion

Islamic religious teachings can enable a person to understand and cope with adverse life events thus preventing resort to suicide.

NOTES

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[1]   Qur’an 2:195

[2]   Bukhari Kitaab al janaiz  Baab 84

[3]   Muslim Kitaab al iman Hadith 178

[4]   Muslim Kitaab al Janaiz  Hadith 107

[5]   Qur’an 15:23

[6]   Qur’an 25:3

[7]   Qur’an 17:33

[8]   Qur’an 5:32

[9]   Qur’an 25:2

[10] Qur’an 33:38

[11] Qur’an 65:3

[12] Muslim Kitaab al Iman Hadith 1

[13] Muslim Kitaab al qadar Baab 17

[14] Muslim Kitaab al qadar  Hadith 34

[15] Ahmad and Tirmidhi

[16] Qur’an 57:22-23

[17] Qur’an 64:11

[18] Qur’an 3:120, 3:186

[19] Qur’an 4:78

[20] Qur’an 21:35

[21] Qur’an 2:216

[22] Qur’an 2:216

A.) WORKSHOP READING MATERIAL

8.0 ISSUES AFTER DEATH

8.1 Embalming

Definition: Embalming is treating a dead corpse with substances that prevent it from decay or decomposition. Embalming does not prevent but delays the decomposition process.

The embalming procedure: In arterial embalming blood is drained through a vein and is replaced by a preservative fluid injected through the arteries. Cavity embalming involves removing fluid from body cavities using a trochar and replacing it with a preservative. Hypodermic embalming involves injecting preservatives under the skin. The fluid used is usually a mixture consisting of formalin and other substances. Arterial embalming is not permanent and repeat treatments are required to maintain the body in an embalmed state.

Embalming and the purposes of the Law: Embalming does not fulfill any of the 5 purposes of the Law. It on the other hand violates the 5^th purpose of preserving wealth, hifdh al maal, because it is an expensive procedure that consumes wealth. It also leads to violation of the hadith of the prophet about hastening the funeral, al ta'ajil bi al janazat[1]. Embalming a body that died of a communicable disease carries a risk to the funeral attendants and the community which would violate the second purpose of preserving life, hifdh al nafs. The prudent measure in cases of death from contagious disease is immediate burial.

Exceptional situations: In an exception to the general rule, embalming could be a better alternative in a situation in which a person dies in a foreign place with no Muslims knowledgeable or willing to give him an Islamic burial. It may be better in such a case to embalm the body and transport it to where it can get a decent and honorable Islamic burial. Proper burial including salat al janazat is one of the 5 cardinal duties of brotherhood in Islam. As many persons as possible should participate in salat al janazat because if 100 persons pray for the dead, the sins may be forgiven by Allah[2]. Embalming could also be considered in a situation in which a Muslim dies or is killed in hostile territory and it is feared that if the body is not transported to a Muslim land, it will be dishonored by the enemies.

8.2 Cryonics

Definition: Cryonics is cryopreservation of the body by cooling it immediately to the temperature of liquid nitrogen after death and keeping it at a low temperature. In some cases only the brain is removed and is cryopreserved because it contains the essential information. The whole practice of cryonics is based on a speculation that future scientific discoveries will be able to reverse death. The practice of cryonics is based on the hope that one day medical technology will be able to reverse the death process so that the clinically dead can come back to life. According to its advocates, cryonics does not involve denial of death, nafiyu al mawt, or denial of resurrection, nafiyu al ba’ath, because its advocates think that clinical death is not terminal death but is a process that can be reversed. The advocates of cryonics do not consider the preserved bodies as dead and they call them patients.

Procedures: Immediately after death the body is infused with glycerol (a cryoprotectant fluid) and is then cooled to a very low temperature. The fluid prevents formation of ice crystals that could damage cells. The body is kept at the low temperature indefinitely.

Cryonics and purposes of the Law: Cryonics is repugnant to the Law because it involves waste of resources, a violation of the 5^th Purpose of the Law. ‘Patients’ as the cryopreserved bodies are referred to have to set aside large sums of money as investments such that the returns on the investment can cover the annual costs of cryopreservation for an indefinite period of time.

Speculative thought, dhann: The other aspect of cryonics that is repugnant to the Law is the speculative thought, dhann, that science will one day develop a method of reversing clinical death. According to the principle of certainty, qa’idat al yaqeen, the Law requires decisions based on actual realities and not speculative or hypothetical conjectures. Advocates of cryonics have been arguing that the cryopreservation would be more effective if started before the point at which clinical death is legally recognized. If this were to be put in practice, the Law would recognize occurrence of a criminal act of murder.

Definition and timeline of death: An outstanding ethico-legal issue relating to cryonics is definition of death and determining the point in time at which death is said to occur. This is because death is a process and not an isolated event. Depending on the definitional criteria used, there are several points on the time line of the death process than could be considered the point of death. Definition of legal death is based on the legal principle of precedent or custom, qa’idat al ‘urf or qa’idat al ‘aadat. The customary definition changes with changes of knowledge and available medical technology. Therefore cryonic procedures carried out after the point considered legal death are repugnant to the Law because they involve denial of death or attempting to artificially prolong life.

Cooling the body before clinical death: Another outstanding issue that deserves further discussion is cooling the body to lower metabolism and decrease tissue damage in a patient who is not yet clinically or terminally dead.

Cryonics and violation of ‘aqidat: The most serious consideration in cryonics relates to ‘aqidat. A person without the correct ‘aqidat does not believe in life in the hereafter and wants to achieve immortality on earth and is therefore wont to turn to cryonics. Cryonics seen from such a perspective should be prohibited absolutely. The relevant Islamic teachings on death are very clear and leave no room for doubts about the prohibition of cryonics. We summarize these teachings for re-emphasis below.

8.3 Autopsy

Definition: The term autopsy or necropsy is used to refer to dissection and examination of a dead body to determine the cause(s) of death. It may be carried out for legal or for educational purposes. 

Purposes of autopsy: Post-mortem examination serves several purposes. It can be done for scientific research to understand the natural history, complications, and treatment of a disease condition. It can be done for further education of physicians and medical students especially when they compare their clinical diagnosis with the evidence from autopsy a process usually referred to as clinico-pathological correlation. The lessons learned will improve their diagnostic and treatment skills in the future and decrease the incidence of clinical mistakes. Post mortems are also undertaken for forensic purposes to provide evidence on the timing, manner, and cause of death. Legally the courts may require scientific proof of the cause of death in order to make decisions regarding various forms of legal liability.

The procedure of the autopsy: The first step in an autopsy is examination of the exterior of the body. Then the body cavity is opened to examine the internal organs. Organs may be removed for examination or may be examined in situ. After the examination removed organs are returned and the external incision is sewed up restoring the body to almost its original appearance with the sole exception of having an incision. During the examination tissues and fluids are removed for further examination that may include histological, microbiological, or serological procedures.

Permissibility of autopsy for educational purposes under the principle of necessity, qa’idat dharuurat: Dissection of cadavers has been very important for medical education over the past decades when there was really no alternatives to dissection. Cadaver dissection was therefore permissible under the legal principle of necessity, dharuurat. The reasoning is that cadaver dissection enables future doctors to be trained well to treat patients which fulfils the second purpose of the Law, preservation of life or hifdh al nafs. The situation of necessity explained above takes precedence over considerations of violating human dignity by dissecting the body under the general principle of the Law that necessities legalize what would otherwise be prohibited, al dharuuraat tubiihu al mahdhuuraat. However this can only be carried out if there is informed consent from the family members who have the authority to consent as prescribed by the Law. As far as possible this consent should take into consideration the will of the deceased on this matter if it was known before death. However human dignity cannot be violated more than necessary. The body should still be handled with respect and consideration. All tissues cut away should be buried properly and the remaining skeleton should also be buried in a respectful way.

Alternative ways of achieving the educational objectives of autopsy: The following arguments cast doubt on the degree of necessity for cadaver dissection in medical education. The cadaver is treated before dissection and does not truly represent the structure or appearance of tissues in a living person. Secondly with availability of computer graphics and anatomical models, medical students can learn human anatomy very conveniently and more efficiently. The necessity of educational autopsies can be reduced by modern endoscopic and imaging technology that can enable inspecting internal structures of a corpse without the making an incision to inspect internal tissues. If the educational objective can be achieved fully using such technology then the rational for the necessity will disappear and educational autopsies will be considered repugnant to the Law.

Ethico-legal issues in autopsy for legal or forensic purposes

The necessity of a forensic post-mortem is based on the paramount paradigm of Islamic Law to ensure justice. If the only way evidence about a crime on a deceased is by an autopsy then it becomes a necessity to carry put the autopsy. A forensic or medico-legal autopsy is more detailed in that it tries to look for clues to the motivation and method of death. It is equally important to record some findings as it is to record negative findings. The deceased should be identified accurately. Documentation is very thorough. The time of death must be estimated. The postmortem record is a legal document that can be produced in a court of law.

8.4 Research On Dead Corpse

There are several types of research on the recently dead that can be permitted under the principle of necessity if they will result in better health care that fulfills the second purpose of the Law, preservation of life or hifdh al nafs. Forensic pathologists may carry out research to study the process of decomposition of the body. They then can use that information to estimate time since death in cases of criminal homicide.

NOTES

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[1] (Bukhari K23 B51)

[2] (Muslim K11 H58)

A.) WORKSHOP READING MATERIAL

7.0 ETHICO-LEGAL ISSUES IN MEDICAL AND SURGICAL TECHNOLOGIES

7.1 Artificial Life Support

Legal definitions of terminal illness and death: Terminal illness is defined as illness from which recovery is not expected. The manner in which death is defined affects the ruling, hukm, about life support. Death can be defined using the traditional criteria of cardio-respiratory arrest. It can also be defined as brain death either higher brain death or death of the brain stem or whole brain death. If death is defined in the traditional way, life support cannot be withdrawn at any stage. If the definition of higher brain death is accepted, life support will be removed from persons who still have many life functions (like respiration, circulation, sensation). The question of quality of life is also raised in the definition of life. The assumption is that there must be some quality to human life for it to be worth living. The exact definition of quality is still elusive. It is argued that euthanasia saves the terminally ill from a painful and miserable death. This considers only those aspects of the death process that ordinary humans can perceive. We learn from the Qur'an that the death of non-believers is stressful in the spiritual sense. Believers can have a good death even if there is pain.

Palliative care: The aim of palliative care is pain control, psychological support, emotional support, and spiritual support. Death can be made a pleasant experience with appropriate palliative care. Palliative care was traditionally in the family but it has recently moved to institutions. Lessons about palliative care can be learned from the terminal illness of the prophet and his companions.

Principles of certainty and autonomy: When the definition of death and the exact time of its occurrence are still matters of dispute, a major irreversible decision like withdrawing life support cannot be taken. Islamic law strictly forbids action based on uncertainty, shakk.

The purposes of life and wealth: The purpose of preserving life may contradict the purpose of preserving wealth. Life comes before wealth in order of priorities. This however applies to expenditure on ordinary medical procedures and not heroic ones of doubtful value because that would be waste of wealth.

Legal rulings on initiating and withdrawing life support: The terminally ill patient, who takes a major risk, should make the final informed decisions after clarification of the medical, legal, and ethical issues by physicians and jurists, fuqaha. The family may request that life support be terminated if the patient is in pain or coma. Self-interest may motivate some members of the family and others with personal interest to hasten the legal death of the terminally ill patient. According to Islamic law, any inheritor who plays any role direct or indirect in the death of an inheritee cannot be an inheritor. It is therefore impossible for any member of the close family to take part in life support withdrawal decisions. Physicians and other health care givers may abuse withdrawal of life support and kill people for various motives.

7.2 Euthanasia

Concepts: Euthanasia is carried out illegally for patients in persistent vegetative states or those in terminal illness with a lot of pain and suffering. Active euthanasia, an act of commission that causes death, is taking some action that leads to death like a fatal injection. Passive euthanasia, an act of omission, is letting a person die by taking no action to maintain life. Terminal sedation with very high doses has the dual effect of controlling pain and causing respiratory failure. Islamic Law views all forms of euthanasia, active and passive, as homicide. Those who give advice and those who assist in any way with suicide are guilty of homicide. A physician is legally liable for any euthanasia actions performed even if instructed by the patient.

Analysis using purposes of the law, maqasid al shariat: Euthanasia violates the Purpose of the Law to preserve Life by taking life and it leads to cheapening human life making genocide more acceptable. It violates the purpose of religion by assuming Allah’s prerogative of causing death.

Analysis using principles of the law, qawaid al shari’at: According to the principle of intention, there is no distinction between active and passive euthanasia because the end-result is the same. The principle of injury makes euthanasia illegal because it tries to resolve the pain and suffering of terminal illness by causing a bigger injury which is killing. Continuation of pain in terminal illness is a lesser evil than euthanasia. According to the legal principle of sadd al dhari’at, prohibition of euthanasia closes the door to corrupt relatives and physicians killing patients for the sake of inheritance by claiming euthanasia. Euthanasia reverses the customary role of the physician as a preserver into a destroyer of life. A distinction in Law exists between withholding life support and withdrawing it. The issue is legally easier if life support is not started at all according to a pre-set policy and criteria. Once it is started, discontinuation raises legal or ethical issues. Continuation is easier that starting. Euthanasia like other controversial issues is better prevented than waiting to resolve its attendant problems. The patient cannot legally agree to termination of life because life belongs to Allah and humans are mere temporary custodians. The determination of ajal is in the hands of Allah. A patient who has legal competence, ahliyyat, makes final decisions about medical treatment and nutritional support. Patients in terminal illness often lose ahliyyat and cannot make decisions on their treatment. A living will is a non-binding recommendation and it can be reversed by the family. They however cannot make the decision for euthanasia.

General conclusions: Our analysis has shown that there is no legal basis for euthanasia. Physicians have not right to interfere with ajal that was fixed by Allah. Disease will take its natural course until death. Physicians for each individual patient do not know this course. It is therefore necessary that they concentrate on the quality of the remaining life and not reversal of death. Life support measures should be taken with the intention of quality in mind. Instead of discussing euthanasia, we should undertake research to find out how to make the remaining life of as high a quality as is possible. The most that can be done is not to undertake any heroic measures for a terminally ill patient. However ordinary medical care and nutrition cannot be stopped. This can best be achieved by the hospital having a clear and public policy on life support with clear admission criteria and application to all patients without regard for age, gender, socio-economic status, race, or diagnosis.

7.3 Solid Organ Transplantation

Background: The first organs involved in transplantations were the skin, the bone, the teeth, and the cornea. Later kidney, heart, lung, and liver transplants were achieved. Glandular and neurohumoral organs will be transplantable in the future. Transplantation decisions are a balance between risk and benefit. Ethical and legal problems of transplantation are temporary; they will disappear with the use of xenografts, artificial organs, and cloned organs.

Legal rulings about transplantation: Transplanting animal or artificial organs or auto-transplantation raise fewer ethical issues than transplantation from a donor. The evidence for transplantation from a human donor, living or dead, is by qiyaas with permission to eat flesh of a dead person in case of dharuurat. The main guide about transplantation is the purpose of maintaining life of the donor and the recipient. Under the principle of hardship, necessity and hardship legalize what would otherwise be objectionable or risky. Mutilation of a dead corpse is normally objectionable but where transplantation can preserve good health this objection is set aside. Under the principle of injury, lowering donor risk has precedence over benefit to the recipient. The complications and side-effects to the recipient must be a lesser harm than the original disease. Transplantation relieves an injury to the body in as far as is possible but its complications and side-effects should be of lesser degree than the original injury. Abuse of transplantation by abducting or assassinating people for their organs could lead to complete prohibition under the principles of dominance of public over individual interest. Prevention of harm has priority over getting a benefit and pre-empting evil. Under the principle of custom brain death fulfills the criteria of being a widespread, uniform, and predominant customary definition of death that is considered a valid custom. Selling organs could open the door to criminal commercial exploitation and may be forbidden under the purpose of maintaining life, the principle of preventing injury, the principle of closing the door to evil and the principle of preventing motive. Protecting innocent people from criminal exploitation is a public interest that has priority over the health interests of the organ recipient. The principle of motive will have to be invoked to forbid transplantation altogether if it is abused and is commercialized for individual benefit because the purpose will no longer be noble but selfish. Matters are to be judged by the underlying motive and not the outward appearances. Other considerations in transplantation are free informed consent, respect for the dignity of the human, ownership and sale of organs, taharat of the organs, sadaqat and iithaar of the organ donor.

Indications, side effects, and complications: The indications of transplantation are irreversible organ failure and sub-optimal organ function. Transplantation on the basis of preventive maintenance of organs in good condition is not allowed because the Law does not allow action based on uncertainty. The associated side effects and complications of immune suppression, infection, neoplasia, graft rejection, and drug toxicity are treated under 2 principles of the Law: hardship, mashaqqa, and injury, dharar.

7.4 Embryonic Stem Cell Transplantation

Description of stem cells: A stem cell is able to divide and replicate itself almost indefinitely and can be grown to produce a more specialized or differentiated cell. Some stem cells are already differentiated or specialized and can be grown to produce only specific specialized cells. Other stem cells are less specialized or differentiated and can be grown into a wide range of specific cell types. These are called multi-potent or pluripotent cells. The third type of stem cells is called totipotent. These are completely undifferentiated and can be grown into any cell type.

Sources of stem cells: Multipotent cells can be found in adult blood, adult bone marrow, and umbilical blood. They can also be derived from cancer tissues and from fetal cells and embryonic cells (either pre-implantation or post-implantation). Embryonic stem cells are totipotent. They are able to develop into any type of body cell or tissue. The nucleus of the stem cell can be removed and can be replaced by the nucleus of a patient who has a damaged tissue. The cell can grow into the desired tissue. Embryonic stem cells are more efficient than adult stem cells.

Diseases likely to be treated using embryonic stem cells: The following serious medical conditions are candidates for cure using stem cells: diabetes, stroke, spinal cord injury, and neurodegenerative disorders such as Parkinson's disease. Stem cells could be grafted at a site of spinal cord injury. Stem cells grafted in the pancreas could produce insulin that is deficient or lacking in diabetics.

Advantages of stem cells: Stem cells have two main advantages. They can be a source of tissue or organs thus helping overcome the shortage of organs for transplantation. Stem cells generated under the patient’s own genetic control will be fully immunologically compatible unlike donated organs that can be rejected by the patient.

Ethical controversy about embryonic stem cells: The use of adult stem cells or cells from the umbilical cord raises few ethical controversies. Embryonic stem cells, unlike adult stem cells, are a source of ethical controversy because they are obtained from embryonic tissue, either pre-implantation or post-implantation. Use of such tissue involves violation of the purpose of preserving life. Since the cell is a potential human life its use in research or transplantation involves denial of that life.

7.5 Cosmetic And Reconstructive Surgery

The concept of change of Allah’s creation: The Qur’an mentions stability of creation (30:30) and stability of Allah’s laws (35:43). The unchanging creation mentioned is constancy of the laws that govern the universe, sunan, as expounded in the Qur’an (35:43). Change is allowed if it follows the Laws. Any changes that do not follow these laws are repudiated. Desire to undertake reconstructive or cosmetic surgery arises out of dissatisfaction with defects and the associated embarrassing appearance. The defects are due to injuries that according to the principle of injury must be removed. Thus technology to remove or correct defects is not opposing or denying Allah’s creation. A serious issue of ‘aqidat would arise if a human were to be dissatisfied with Allah’s primary creation because it is optimal and perfect. Humans cannot conceptualize a better creation that they then prefer. Deliberate effort to change Allah’s primary creation without valid reasons is due to shaitan. There is risk in tampering with fitra without following the sunan.

Beautification: Allah made humans in a perfect image. He however also allowed them to enhance their physical appearance by wearing clothes, using perfumes. These measures improve appearance do not change fitra. Humans in disobedience undertake other forms of beautification that change basic fitra or do not follow the sunan. Prohibited procedures are tattooing, shortening teeth, widening gaps between teeth, and plucking eyebrows. Circumcision is an allowed procedure although it involves change of fitra. Male circumcision is mustahabb and is recommended on hygienic grounds. Opinions differ about female circumcision. Fraudulent procedures that are prohibited are wearing wigs, dyeing hair to hide age, and hymenal reconstruction. There are other forms of beautification. Increasing body weight and changing body shape by dieting is common and was practiced by women at the time of the prophet without objection.

Reconstructive/restorative surgery: Reconstructive/restorative surgery is carried out to correct natural deformities, deformities due to disease, and deformities due to complications of disease treatment. Malformations may be congenital or acquired. The distinction is not important because many of the congenital malformations are due to environmental factors operating in utero. The purposes of surgery on congenital malformations are: restoration of the normal appearance to relieve psychological pressure or embarrassment and restore function. These purposes do not involve change of fitra but restoration of fitra to its state before the injury. Similarly restorative surgery for deformities due to disease or treatment does not involve change of fitra since they are returning to the normal. Surgery for hiding identity of a witness is allowed. A surgical operation to reveal the true gender of an apparent hermaphrodite is not change of fitra but an attempt to restore fitra altered by hormonal or chromosomal damage. Such operations have another objective of trying to preserve or restore the reproductive function.

Cosmetic surgery: Cosmetic surgery has a sole purpose of enhancing beauty with no medical or surgical indication. It can fulfill the purpose of preserving progeny, hifdh al nasl, if carried out for beautification in order to find a marriage partner. Expensive cosmetic surgery violates the purpose of preserving wealth, hifdh al maal. It violated the principle of preservation of religion, hifdh al ddiin, if carried out with the belief that Allah’s creation was ugly. Under the principle of motive, qai’dat al qasd, we look at each individual case of cosmetic surgery and judge it based on the intention. As mentioned above a simple cosmetic surgery operation may lead to the noble purpose of marriage. We however must consider the benefits of cosmetic surgery against its harm under the principle of injury. The Law gives priority to prevention of injury over accruing a benefit. The principle of hardship cannot be applied to cosmetic surgery because there is no life-threatening situation necessity to justify putting aside normal prohibitions. Pursuit of beauty in not necessary for life and good health. Beauty is in any case a nebulous intangible entity that is very subjective.