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Paper Presented at the joint 1st Annual Scientific Congress of the Islamic Medical Association and Network of Indonesia (IMANI), the 2nd Islamic Hospital Consortium Meeting, the Annual Scientific Meeting of al-Islam Hospital Bandung, and the Islamic Development Bank Meeting on Funding Socialization held at Horison Hotel Bandung on 18-20 February 2005 by Professor Dr Omar Hasan Kasule Sr. MB ChB (MUK), MPH & DrPH (Harvard) Deputy Dean Faculty of Medicine UIA Malaysia http://omarkasule.tripod.com
ABSTRACT
The ethical theory of Islam is based on the 5 purposes of the Law, maqasid al shari’at[1]. The five purposes are preservation of ddiin, life, progeny, intellect, and wealth. Any medical action must fulfill one of the above purposes if it is to be considered ethical. The basic ethical principles of Islam relevant to medical practice, derived from the 5 principles of the Law, qawa’id al fiqh[2], are: intention, qasd; certainty, yaqeen; harm, dharar; hardship, mashaqqat; and custom, urf. Whereas the maqasid define the purposes of medicine, the qawa’id help resolve conflicts that may arise among the maqasid in practical situations. The paper presents a wide range of ethical guidelines derived from the maqasid and the qawa’id.
1.0 PURPOSES OF MEDICINE
1.1 Protection of the ddiin. Hifdh al ddiin
Protection of the 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 pillars of Islam: prayer, salat; fasting, siyaam; and pilgrimage, hajj. A sick or a weak body can perform none of them properly. Balanced mental health is necessary for understanding ‘aqiidat and avoiding false ideas that violate ‘aqiidat. Thus medical treatment of mental disorders contributes to preservation of ‘aqiidat.
1.2 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. 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.
1.3 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, peri-natal 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.
1.4 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.
1.4 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.
2.0 PRINCIPLES OF MEDICINE
2.1 The principle of intention, qa’idat al qasd
The Principle of intention comprises several sub principles. The sub principle that each action is judged by the intention behind it calls upon physicians to consult their inner conscience and make sure that their actions, seen or not seen, are based on good intentions. The sub principle ‘what matters is the intention and not the letter of the law’ rejects the wrong use of data to justify wrong or immoral actions. The sub principle that means are judged with the same criteria as the intentions implies that no useful medical purpose should be achieved by using immoral methods.
2.2 The principle of certainty, qaidat al yaqeen
Medical diagnosis does cannot reach the legal standard of yaqeen. Treatment decisions are best on a balance of probabilities. Each diagnosis is treated as a working diagnosis that is changed and refined as new information emerges. This provides for stability and a situation of quasi-certainty without which practical procedures will be taken reluctantly and inefficiently. Existing assertions should continue in force until there is compelling evidence to change them. All medical procedures are considered permissible unless there is evidence to prove their prohibition. Exceptions to this rule are conditions related to the sexual and reproductive functions. All matters related to the sexual function are presumed forbidden unless there is evidence to prove permissibility.
2.3 The principle of injury, qaidat al dharar
Medical intervention is justified on the basic principle that injury, if it occurs, should be relieved. An injury should not be relieved by a medical procedure that leads to an injury of the same magnitude as a side effect. In a situation in which the proposed medical intervention has side effects, we follow the principle that prevention of harm has priority over pursuit of a benefit of equal worth. If the benefit has far more importance and worth than the harm, then the pursuit of the benefit has priority.
Physicians sometimes are confronted with medical interventions that are double edged; they have both prohibited and permitted effects. The guidance of the Law is that the prohibited has priority of recognition over the permitted if the two occur together and a choice has to be made. If confronted with 2 medical situations both of which are harmful and there is no way but to choose one of them, the lesser harm is committed. A lesser harm is committed in order to prevent a bigger harm. In the same way medical interventions that are in public interest have priority over consideration of individual interest. The individual may have to sustain harm in order to protect public interest. In the course of combating communicable diseases, the state cannot infringe the rights of the public unless there is a public benefit to be achieved. In many situations, the line between benefit and injury is so fine that salat al istikharat is needed to reach a solution since no empirical methods can be used.
2.4 Principle of hardship, qaidat al mashaqqat
Medical interventions that would otherwise be prohibited actions are permitted under the principle of hardship if there is a necessity. Necessity legalizes the prohibited. In the medical setting a hardship is defined as any condition that will seriously impair physical and mental health if not relieved promptly. Hardship mitigates easing of the shari’at rules and obligations. Committing the otherwise prohibited action should not extend beyond the limits needed to preserve the Purpose of the Law that is the basis for the legalization.
Necessity however does not permanently abrogate the patient’s rights that must be restored or recompensed in due course; necessity only legalizes temporary violation of rights. The temporary legalization of prohibited medical action ends with the end of the necessity that justified it in the first place. This can be stated in an alternative way if the obstacle ends, enforcement of the prohibited resumes. It is illegal to get out of a difficulty by delegating to someone else to undertake a harmful act.
2.5 The principle of custom or precedent, qaidat al urf
The standard of medical care is defined by custom. The basic principle is that custom or precedent has legal force. What is considered customary is what is uniform, widespread, and predominant and not rare. The customary must also be old and not a recent phenomenon to give chance for a medical consensus to be formed. Established medical procedures and protocols are treated as customs or precedents. What has been accepted as customary over a long time is not considered harmful unless there is evidence to the contrary
3.0 REGULATIONS OF MEDICAL PROCEDURES, dhawaabit al tibaabat
3.1 Examination and investigation
Patient consent is necessary for history taking otherwise it is considered trespassing on privacy and spying. History taking provides an opportunity to discuss diseases of the heart that underlie physical disease. It is an opportunity for taubat and da’awat. It is also an opportunity for advice on fiqhi matters relating to daily living.
Physical clinical examination also requires informed consent. A patient can only be examined against his or her consent only if there is a necessity relating to the life of the patient or to public interest such as criminal investigation. Mental patients are not legally competent to give consent; the necessary consent could be obtained from a guardian, wali.
Examination by a caregiver of the opposite gender requires special consideration. It is always preferable that physicians of the same gender carry out the examination. A physician of the opposite gender can be used only if a situation of necessity arises. A chaperone must be present. Examination is limited to what is necessary.
The results of laboratory investigations have the same requirements for confidentiality as history and clinical examination. The results of radiological investigations are confidential. Images that show the shape of the body parts can be considered showing ‘awrat and should not be seen except by authorized people only and for specific purposes.
Invasive investigations carry a higher risk to the patient; their benefits should be carefully weighed against the benefits. These investigations should be carried out only if there is a clear necessity, dharuurat.
3.2 Medical treatment
Medical treatment may involve destruction (antibiotics, cytotoxics, anti-metabolites, antagonists, antitoxins, and detoxification), replacement (hormones, fluids, electrolytes), biological modification & modulation, psycho-active therapy, and supportive treatment (diet, rest, analgesia etc). It is prohibited to use haram materials and najasat as treatment. What is prohibited as food or drink is also prohibited as medicine. Exceptions are made in cases of dharuurat. Medicine taken orally does not nullify wudhu. Medicine given per rectum nullifies wudhu. Subcutaneous or intravenous or intramuscular injections do not nullify wudhu unless there is extensive external bleeding. Any medicine taken orally or rectally or any insertion of a scope will nullify saum.
3.3 Surgical treatment
Permitted surgical procedures include resection, restorative/reconstructive surgery, transplantation, blood transfusion, anesthesia, and critical care.
Transfusion of whole blood or blood components is widely accepted and raises few legal or ethical issues. Blood donation is analogous to organ donation by a living donor. Transfused blood is not considered filth, najasat, because it is not spilled blood. Blood transfusion is allowed on the basis of dharuurat. There is no problem in blood donation between Muslims and non-Muslims because they share human brotherhood. There is no problem in blood transfusion between a man and a woman. Blood transfusion does not abrogate the wudhu of the donor or the recipient. Sale of blood is permitted using the analogy of sale of milk by a wet nurse who is paid for her services.
Attempts must be made to minimize inappropriate mixing of male and female health care personnel in a small confined space of the operating theater.
3.4 Other treatments
Dua, ruqyah, tawakkul, and raja are spiritual treatments. Immunization and other preventive measures are treatment before disease and are not denial of qadar. It is permitted to slaughter on behalf of the sick taqarruban ila al llaah and to give the poor. It is prohibited to slaughter for the jinn and the shaitan. Various traditional, alternative, and complementary therapies are permitted if they are of benefit. Other permitted treatment modalities are irradiation, immunotherapy, and genetic therapy.
4.0 REGULATIONS OF PHYSICIAN CONDUCT, dhawaabit al tabiib
4.1 Values, competence, and responsibility
The physician-patient interaction is based on brotherhood. The physician must maintain the highest standards of justice. He should also follow the following guidelines from the sunnat: good intentions, avoiding doubtful things, leaving alone matters that do not concern him, loving good for others, causing no harm, giving sincere advice, avoiding the prohibited, doing the enjoined acts, renouncing greed, avoiding sterile arguments, respect for life, basing decisions and actions on evidence, following the dictates of conscience, righteous acts, quality work, guarding the tongue, avoiding anger and rage, respecting and not transgressing Allah’s limits, consciousness of Allah in all circumstances, performing good acts to wipe out bad ones, treating people with the best of manners, restraint and modesty, maintaining objectivity, seeking help from Allah, and avoiding oppression or transgression against others.
The physician should have professional competence, itiqan & ihsaan, balance, tawazun, responsibility, amanat, and accountability, muhasabat. He must work for the benefit of the patients and the community, maslahat ‘aamat.
4.2 Medical decisions
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 their decision-making. 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, recommendation of the physician on the best course of action, decision by the patient, and authorization by the patient to carry out the procedures. The patient is free to make decisions regarding choice of physicians and choice of treatments. Consent can be by proxy in the form of the patient delegating decision making or by means of a living will.
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 qadhi. Doubts about consent are resolved in favor of preserving life. Spouses and family members do not have an automatic right to consent. A spouse cannot overrule the patient’s choice. Advance directives, and 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.
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, doctors in armed forces. Police surgeons may have to carry out examinations on suspects without informed consent.
Competent children can consent to treatment but cannot refuse treatment. The consent of one parent is sufficient if the 2 parents disagree. Parental choice takes precedence over the child’s choice. The qadhi 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 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 qadhi order. Suicidal patients tend to refuse treatment because they want to die.
Nutrition, hydration, and treatment can be withdrawn in a persistent vegetative state since the chance of recovery is low. There is no moral difference between withholding and withdrawing futile treatment.
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.
4.3 Disclosure and truthfulness
As part of the professional contract between the physician and the patient, the physician must tell the whole truth. Patients have the right to know the risks and benefits of medical procedure in order for them to make autonomous informed consent. Deception violates fidelity. If disclosure will cause harm it is not obligatory. Partial disclosure and white or technical lies are permissible under necessity. Disclosure to the family and other professionals is allowed if it is necessary for treatment purposes. Physicians must use their judgment in disclosure of bad news to the patient or the family.
4.4 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. Physicians are required to respect the confidentiality of the private information they obtain in the course of their work. 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. 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 cannot 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 claims.
4.5 Fidelity
The principle of fidelity requires that physicians be faithful to their patients. It includes: acting in faith, fulfilling agreements, maintaining relations, and fiduciary responsibilities (trust and confidence). Fidelity is understood as a contractual obligation although not written down. Abandoning the patient at any stage of treatment without alternative arrangements is a violation of fidelity. The fidelity obligation may conflict with the obligation to protect third parties by disclosing contagious disease or dangerous behavior of the patient. The physician may find himself in a situation of divided loyalty between the interests of the patient and the interests of the institution. The conflict may be between two patients of the physician such as when maternal and fetal interests conflict. Physicians involved in clinical trials have conflicting dual roles of physicians and investigators. These issues can be resolved by reference to the maqasid and qawa’id.
5.0 REGULATIONS ABOUT PROFESSIONAL MISCONDUCT
5.1 Abuse of professional privileges
Un-ethical research on patients is abuse of professional privileges. This takes the form of carrying out research without informed consent or doing research for drug companies for personal material gain.
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 he 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 purposes of teaching and research, disclosure for purposes of health management.
5.2 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.
5.3 Public professional mis-conduct
Physicians in private practice must adopt good business practices. Halal transactions are praised[3]. An honest businessman is held in high regard[4]. Leniency in transactions is encouraged[5]. Full disclosure is needed in any transaction[6]. Measures and scales must be fulfilled[7]. Bad business practices are condemned. There is no blessing in immoral earnings[8]. Selling over another’s sale is prohibited[9]. Cheating is condemned[10]. Also condemned are financial fraud including criminal breach of trust, riba on bills, fee splitting, bribery[11]. 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 as ajr al tabiib[12]. Medical fees cannot be fixed by government because the Prophet refused to fix prices[13].
[1] Abu Ishaq al Shatibi Ibrahim bin Musa al Gharnati al Maliki (d. 790 H): Al Muwafaqaat fi Usuul al Shari’at. Dar al Kutub al ‘Ilmiyyat. Beirut. Lebanon. (3 vols.) No date of publication.
[2] Ali Ahmad al Nadawi. Al qawa’id al Fiqhiyyat. Dar al Qalam. Damascus Syria. 1414H/1194 M
[3] Musnad Zaid Hadith No. 539
[4] Sunan al Tirmidhi Kitaab al Buyuu’u Baab No. 4
[5] Sahih al Bukhari Kitaab al Buyuu’u Baab No. 16
[6] Sunan Ibn Majah Kitaab al Tijaaraat Baab No. 45
[7] Muwatta Malik Kitaab al Buyuu’u Hadith No. 99
[8] Suna al Darimi Kitaab al Riqaaq Baab No. 60
[9] Sahih Bukhari Kitaab al Buyuu’u Baab No. 58
[10] Sahih al Bukhari Kitaab al Buyuu’u Baab No. 19
[11] Sunan Abudaud Kitaab al Aqdhiyat Baab 4
[12] Sahih al Bukhari Kitaab al Ijaarat Baab No. 16
[13] Sunan Abudaud Kitaab al Buyuu’u Baab No. 49