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Presented at a training workshop for family physicians working in the Ministry of Health held at the Riyadh Castle Hotel on 22nd March 2010 by Professor Dr Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard)
ABSTRACT
The paper starts by explaining the basic sources of Islamic Law as a background for discussing fiqhi issues in medical practice, fiqh tibbi. It then introduces the theory of Purposes of the Law, maqasid al shari’at, and the principles of the Law, qawa’id al shari’at. It then discusses several practical issues that are encountered in daily medical practice.
1.0 SOURCES OF THE LAW, masadir al shariat
1.1 Qur’an as a primary source of law
The Qur'an is 'Allah’s words revealed to Muhammad (PBUH) in Arabic, transmitted to us in continuity, written in the mashaf, whose recitation is worship, commencing with surat al fatihat and ending with surat al nas. Verses of the Qur’an were revealed adhoc each associated with sabab al nuzuul. It was memorized and also written down immediately. Abubakar collected the written records and Othman issued one official version in the Quraishi dialect that is used all over the world.
The Qur’an is practical, rational, and miraculous. Its 3 themes are ‘aqidat, spiritual refinement, and practical guidance. Legal rulings, ayat al ahkaam, are a minority of its more than 6000 verses being distributed munakahaat 70, mu'amalat 70, jinayaat 30, iqtisaad 10 verses, qadha 13 verses, government 10 verses, and international law 25 verses. The Qur’an is comprehensive and complete but deals with issues in a generic and not specific way. Its verses are muhkamat or mutashabihat. It challenges the intellect, does not indoctrinate, and gives room for opposing views.
It is divided into 114 surats. Each surat starts with the basmalah except surat al baraa. It is divided into 30 juz’us each divided into 2 hizbs. Rub'u or thumun are subdivisions of the hizb. The Makkan verses, dealing with aqidat, are short, poetic, and powerful. Madinan verses are longer dealing with details of societal organization.
The prophet read the Qur’an in 7 different ways, The Qur’an can be recited as tartiil or as tajwid. As a source of legislation the Qur’an provides general foundations and principles. Qur'anic evidence for legal rulings is either qatui, or dhanni. The Qur'an is the primary source of law. All other recognized sources are secondary to the Qur'an and are validated by it.
1.2 Sunnat as a primary source of law
Sunnat, a subgroup of hadith and part of wahy, is defined as words, actions, and tacit agreement of the Prophet. A hadith consists of a sanad, and matn. It can be hadith nabawi or hadith qudsi. Writing of hadith started late. Hadith collections are classified as sihaah, sunan, masanid, and muwatta’at. Hadith is described as mutawatir if narrated by many, mash'hur if reported by at least 2, and aahaad if reported by only 1 sahabi. It be tashri'i if legislative or ghayr tashri' if it is not. The grades of hadith authenticity in descending order are: sahiih, jayyid, and hasan. Muttafaq ‘alayhi is reported by both Bukhari and Muslim. Musnad has a chain of narrators to the prophet. Muttasil has an unbroken chain of narrators. The sanad stops at a sahabi in mawquf and at a tabi’e in a marfu’u hadith. In mursal the tabi’e reports directly from the prophet. Munqati’u has an incomplete sanad. Dha’if lacks the attributes of the sahiih and hasan. Sunnat can affirm, explain, or elaborate the Qur'an or bring up matters not mentioned in the Qur’an. Obedience of the prophet implies following his sunnat. The sunnat comes second to the Qur'an as a source of law. The daliil of the sunnat may be definitive, qatai, or probable, dhanni. The sunnat is interpreted in the light of general principles of the Qur'an, the social situation in the prophetic era, and the Arabic language.
1.3 Secondary sources of the Law
Ijma is agreement of all mujtahids existing at one time on a particular legal ruling based on nass. It can be ijma sariih or ijma sukuuti. Qiyas is use of a ruling of one matter for another matter when the two share the same illat. Pre-Islamic laws, shara'u man qablana, were either abrogated or confirmed by the Qur’an. The word of the companion, qawl al sahabi, is a source of law under specified conditions. Custom or precedent, ‘aadat or 'urf, is a source of law if it does not contradict nass, there is ijma on it, and is in the public interest, and closes the door to evil. Istishaab is continuation of an existing ruling until there is evidence to the contrary. Istihsaan is preference for one qiyaas by a mujtahid. Istislaah is assuring a benefit or preventing a harm used in mu’amalat but not ‘ibadat. Maslahat mursalat is public interest based on ra’ay when there is no nass. Sadd al dhari'at is prohibition of an act that is otherwise mubaah because it has a high probability of leading to haram.
2.0 CLASSIFICATION OF REGAL RULINGS: MEDICAL APPLICATIONS
2.1 Obligatory, waajib
Waajib is the most important legal ruling. The shafi’e school considers waajib the same as faradh. Individual obligations, fardh aini, cannot be delegated. Performance of a collective obligation, fardh kifai, by any member of the community absolves the rest from sin. However only those with the necessary competence can perform the collective obligations. The rest are not obliged even if they are members of the community.
2.2 Recommended, manduub
Recommended, manduub, is also called sunnat or masnuun, nafilat, mustahabb, tatawu'u, ihsaan, fadhiilat. It is ordained without compulsion. The manduub has got the following levels of excellence: confirmed, sunnat muakkada; and not confirmed, sunnat ghayr muakkadat. The sunnat muakkadat is what the Prophet used to carry out continuously and left it only on rare occasions.
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2.3 Prohibited, haraam
Prohibited/unlawful, haraam is defined as omission of the waajib or commission of the haraam. The original position for all human acts is permission and prohibition is the exception. Thus textual evidence is required to prove prohibition but is not required to prove permission. The situation is reversed in sexual matters in which the original position is haraam and permission is the exception requiring textual evidence. Only Allah can make something haraam. Haraam is prohibited because it is impure and harmful. An act that aggravates disease is haraam. An act that leads to haraam is also haraam. An act that cures disease is waajib. A general principle is that the halaal is clear and the haraam is clear and between the two are inconclusive matters, mutashaabihaat For inconclusive matters what leads to bad or evil is makruuh and what leads to good is manduub.
2.4 Offensive, makruuuh
Offensive/reprehensible/disaaproved, makruuh, is an act that is discouraged by the Law giver without compulsion. It is better to avoid the makruh. The makruh is an introduction to the haram and must therefore be avoided.
2.5 REWARDS AND PUNISHMENTS FOR VARIOUS ACTS
The classification of acts can best be understood from the consenquences of doing them or not doing them
Classification of act | Commission (action done) | Omission (action not done) |
Wajib | Reward | Punishment |
Manduub, mustahabb, or masnuun | Reward | No punishment |
Haram | Punishment | Reward |
Makruuh | No punishment | Reward |
Mubaah | No reward | No punishment |
3.0 EVOLUTION OF MEDICAL JURISPRUDENCE, tatawwur al fiqh al tibbi
3.1 First period
There are three stages in the evolution of fiqh tibbi. In the first period (0 to circa 1370H) it was derived directly from the Qur’an and sunnat.
3.2 The second period
In the second period (1370-1420) rulings on the many novel problems arising from drastic changes in medical technology were derived from secondary sources of the Law either transmitted (such as analogy, qiyaas, or scholarly consensus, ijma) or rational (such as istishaab, istihsaan, and istirsaal).
3.3 The modern period
The failure of the tools of qiyaas to deal with many new problems led to the modern era (1420H onwards) characterized by use of the Theory of Purposes of the Law, maqasid al shari’at, to derive robust and consistent rulings. Ijtihad maqasidi is becoming popular and will be more popular in the foreseeable future.
The theory of maqasid al shari’at is not new but many people had not heard about it because its time had not yet come. By the 5-6th centuries of hijra the basic work on the closed part of the Law derived directly from primary sources was complete. Any further developments in the law required opening up new the flexible part of the law which necessitated discussion of the purposes of the law. It was at this time that al Ghazali and his teacher Imaam al Haramain al Juwayni introduced the ideas that underlie the concept of maqasid al shari’at. Other pioneers of the theory of maqasid al shari’at were Imaam an Haramain al Juwayni and his student Abu Hamid al Ghazzali (d. 505 H), Sheikh al Islam Ahmad Ibn Taymiyyah (d. 728H) and his student Ibn al Qayyim al Jawziyyat (d. 751H). The field of the purposes of the law witnessed little development until revived by the Abdalusian Maliki scholar Imaam Abu Ishaq al Shatibi in the 8th century AH who elaborated Ghazzali's theory. Our subsequent discussion of the purposes of the law is from al Shatibi's book al muwafaqaat fi usuul al shariat
4.0 DERIVATION OF MEDICAL ETHICS FROM THE LAW
4.1 Relation between law and ethics
Islamic Law is comprehensive being a combination of moral and positive laws. It can easily resolve ethical problems that secularized law, lacking a moral religious component, cannot solve. Many contemporary ethical issues in medicine are moral in nature and require moral guidance that can be provided only from religion. The Law is the expression and practical manifestation of morality. It automatically bans all immoral actions as haram and automatically permits all what is moral or is not specifically defined as haram. The approach to ethics is a mixture of the fixed absolute and the variable. The fixed and absolute sets parameters of what is moral. Within these parameters, consensus can be reached on specific moral issues. Ethical theories and principles are derived from the basic Law but the detailed applications require further ijtihad by physicians. Islam has a parsimonious and rigorously defined ethical theory of Islam based on the 5 purposes of the Law, maqasid al shari’at. 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. Legal axioms or principles, qawa’id al shari’at, guide reasoning about specific ethico-legal issues and are listed as intention, qasd; certainty, yaqiin; injury, dharar; hardship, mashaqqat; and custom or precedent, ‘urf or ‘aadat.
4.2 The 5 Purposes of the Law in Medicine, maqasid al shari’at fi al tibb
Protection of ddiin, hifdh al ddiin, 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. A sick or a weak body cannot perform physical ‘ibadat properly. Balanced mental health is necessary for understanding ‘aqidat and avoiding false ideas that violate true ‘aqidat.
Protection of life, hifdh al nafs: The primary purpose of medicine is to fulfill the second purpose of the Law, the preservation of life, hifdh al nafs. Medicine cannot prevent or postpone death since such matters are in the hands of Allah alone. It however tries to maintain as high a quality of life until the appointed time of death arrives. Medicine contributes to the preservation and continuation of life by making sure that physiological functions are maintained. Medical knowledge is used in the prevention of disease that impairs human health. Disease treatment and rehabilitation lead to better quality health.
Protection of progeny, hifdh al nasl: Medicine contributes to the fulfillment of the progeny 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.
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.
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 healthy vibrant communities. The principles of protection of life and protection of wealth may conflict in cases of terminal illness. Care for the terminally ill consumes a lot of resources that could have been used to treat other persons with treatable conditions.
4.3 The 5 Principles of the Law in Medicine, qawa’id al shari’at fi al tibb
The principle of intention, qa’idat al qasd: The Principle of intention comprises several sub principles. The sub principle ‘each action is judged by the intention behind it’ calls upon the physician to consult his inner conscience and make sure that his 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 ‘means are judged with the same criteria as the intentions’ implies that no useful medical purpose should be achieved by using immoral methods.
The principle of certainty, qa’idat al yaqeen: Medical diagnosis cannot reach the legal standard of absolute certainty, yaqeen. Treatment decisions are based on a balance of probabilities. The most probable diagnosis is treated as the working while those with lower probabilities are kept in mind as alternatives. 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. The principle of certainty asserts that uncertainty cannot abrogate an existing certainty. 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.
The principle of injury, qa’idat al dharar: Medical intervention is justified on the basic principle is 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 an injury has priority over pursuit of a benefit of equal worth. If the benefit has far more importance and worth than the injury, 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 injurious and there is no way but to choose one of them, the lesser injury is committed. A lesser injury is committed in order to prevent a bigger injury. In the same way medical interventions that are in the public interest have priority over consideration of individual interest. The individual may have to sustain an injury in order to protect public interest. In many situations, the line between benefit and injury is very fine.
The 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. Necessities legalize the prohibited, al daruuraat tubiihu al mahdhuuraat, and mitigate easing of legal rules and obligations. In the medical setting a hardship is defined as any condition that will seriously impair physical and mental health if not relieved promptly. 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. The temporary legalization of prohibited medical action ends with the end of the necessity that justified it in the first place.
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.
5.0 IBADAT OBLIGATIONS FOR THE SICK
5.1 Taharat for the sick, taharat al mariidh
Tayammum is carried out when it is difficult to use water. In hospital practice doctors come across many questions concerning patient hygiene, nadhafat al mariidh. Blood is the most often encountered intravascular fluid. Fresh blood is not najs when in the body Blood of epistaxis is not najasat[1] but must be washed away immediately. Freshly spilled blood (venous or arterial) is not najasat but must be cleaned away with water[2] [3] and does not require repeating wudhu.. At the time of the prophet the therapeutic procedure of cupping, hijaamah, was common and the blood was not treated as najs[4]. Pleural, peritoneal, pericardial, and synovial fluids are not najs and must be washed away if they are outside their respective cavities. Respiratory secretions are not najasat but must be washed away. Upper GIT vomitus is not najs and does not nullify wudhu. This is because contents of the upper GIT are mostly recently ingested food. The lower GIT vomitus especially the lower intestine has fecal excretory material that is najs. Vomitus that is severe may contain intestinal contents and should always be considered najs. The vomitus of a baby is treated like its urine. Diarrhea is najs and nullifies wudhu. Esophageal, gastric, and naso-gastric tubes are inserted for diagnostic or therapeutic purposes. The fluids involved are not najs but must be washed away to prevent their becoming nidi of infection. A tracheostomy tube may be inserted in cases of respiratory distress and respiratory secretions may accumulate in it. These secretions are not najs.
Stoma have to be cleaned and salat is done with them discharging.
5.2 Haidh
Artificial menopause is necessary, dharuurat, if there is serious disease like cancer. Delay of menopause is offensive if done for purposes of appearing young to the general society. The Law in general is against any deceptions regarding a person's age. Estrogen replacement therapy (ERT) can alleviate virtually all menopausal symptoms. ERT has serious side effects that have to be considered under the two principles of benefit and harm. The menstrual flow may be prolonged in association with menorrhaghia and without it. The Law considers 15 days the maximum duration of the menstrual flow. Salat and fasting are suspended during this time. Salat and other acts of ibadat are resumed if the flow continues beyond 15 days since prolonged bleeding, istihaadhat, is not considered menstruation[5]. DUB does not stop the woman from salat or saum and is treated as urinary incontinence. The woman washes her vagina and perineum, pads herself, makes wudhu and prays immediately to try to avoid being caught by more bleeding. Sexual relations are allowed in DUB unless there is a medical contra-indication[6]. The use of hormones to regulate the menstrual period in order to be able to complete the rituals of pilgrimage is widely used. The same cannot be done for Ramadhan.
5.1 Salat of the sick, salat al maridh
The patient may have the following physical handicaps: inability to face the qiblat, inability to stand, inability to sit, inability to read, inability to bow, and inability to prostrate. The following are solution alternatives: make-up salat, qadha al salat; resting for moments in a sitting position to regain energy for the next movement; praying in a sitting position; praying while sitting down and cross-legged; praying while lying down on one side of the body; resting on a staff in salat; Praying by gesturing with one part of the body e.g. finger; and finally praying in the mind with no motions. The sick stop qiyam al layl and try to fulfill the 5 prescribed prayers. Salat can be interrupted for an urgent need that could be medical or otherwise. Women are excused from salat during the period of menstruation because of the associated physiological stress.
5.3 Saum for the patient, saum al mariidh
Measures to prevent physiological harm in saum: The prophet (PBUH) taught measures to ensure that saum does not cause physiologic damage. Saum continuously from day to day, wisaal, was forbidden[7]. Early iftaar was recommended[8]. Delaying suhuur was recommended[9].
Medical guidelines on diet in saum. The aim should be maintaining normal body weight or actually reducing it if overweight. Over-eating at iftaar and suhuur should be avoided. It will cause weight gain and indigestion. The diet should contain sufficient fiber to prevent constipation. Fiber and slowly digested foods with a long stomach transit times are preferred because they delay the feeling of hunger. Enough water should be taken at night both for preventing dehydration and preventing constipation. Adequate fluid and salt intake prevents lethargy in the afternoon caused by low blood pressure.
Inadequate sleep is a cause of headaches. Intake of adequate calcium, magnesium, and potassium will prevent muscle cramps. Hot places should be avoided because they aggravate the dehydration. Cooling the body such as tepid sponging, tabarrud, is allowed[10] during saum.
Old age: Old age is considered an excuse from saum[11] because of physiological fragility and delicate nutritional requirements.
Diabetes mellitus: Diabetes has special consideration in saum because of its direct relationship with food intake. Insulin-dependent diabetics have to reduce their insulin dose because of reduced food intake during the day. In some cases this is not possible and they have to be exempted from saum altogether especially if their diabetic control is brittle. Insulin-dependent diabetics should be monitored very carefully because hypoglycemia may arise due to insulin injections with inadequate dietary intake. Non-insulin diabetics can undertake saum under medical supervision. This will generally require changing times of medication, close monitoring of blood sugar levels, and being alert to any hyperglycemic or hypoglycemic crises. Pregnant diabetics are exempted from fasting because diabetic control is more difficult in pregnant women making fasting doubly hazardous for both the mother and the fetus.
Other conditions of Illness: The sick are allowed to break saum[12] if trusted physicians fear that saum will be deleterious to good health. The missed saum is made up later[13]. If the illness is chronic, maradh muzmin, then there will be no opportunity for making up. The saum of a sick person is valid but is makruh. The heirs can perform make-up fasting, qadha al saum, for days missed by a deceased disabled by disease in terminal illness[14]. Peptic ulcers are aggravated by raised acid levels and could be a reason for exemption from saum. Low fluid intake could encourage growth of kidney stones and joint problems due to deposition of excess solutes.
Saum in difficult weather: Saum in conditions of extreme heat leads to dehydration. Care should be taken to take enough fluids at suhuur and not to expose oneself to extreme environmental temperatures. In very cold areas, the metabolic rate is raised to be able to generate sufficient heat for maintaining body temperature. In such conditions extra care should be taken to consume enough food and to cover oneself properly to minimize heat loss. Regions of the world near the two poles may have extremely long days in summer and very short ones in winter. It is recommended that the times of suhuur and iftaar of the nearest temperate region should be followed rather than following local sun-rise and sunset.
Saum in pregnancy, menstruation, and the post partum period: The pregnant woman, al hublah, is allowed to break saum[15] if saum is a health risk. The breast-feeding woman or nursing woman, al murdhi'[16], is allowed to break saum if there is health risk. The exemption from fasting is obligatory for the menstruating woman, al haidh[17], and for a woman in the post partum period, nifaas[18]. Any fasting undertaken in haidh and nifaas is invalid.
Concept of jawf: Any potentially nutritious substance that enters and stays the inside cavity of the body, al jawf, nullifies saum. The term jawf has to be reinterpreted in view of modern anatomical and physiological knowledge. In my understanding jawf means the alimentary canal from the mouth to the anus.
Oral intake: Deliberate eating and drinking and eating nullify saum. Smelling food or any other pleasant odor does not nullify saum Use of snuff or tobacco in the nose nullifies saum. Deliberate smelling of tobacco or any other type of smoking material nullifies saum. If the smelling is non intentional it does not nullify the saum. Madhmadhat and istinshaaq in wudhu are permitted during saum[19]It is however offensive to exaggerate them[20]. The decision of what is normal and what is excessive requires more discussion. More discussion is needed on swallowing saliva and swallowing phlegm during saum. The mouth can be rinsed with pure water without nullifying saum. Care must be taken to avoid swallowing Siwaak is permitted all through the day of saum[21]. Use of a tooth brush with toothpaste is allowed if care is taken to rinse out the mouth fully such that none of the toothpaste remains in the mouth. The ear-drum was traditionally considered a nullifier of saum but unless the eardrum is perforated there is no direct connection between the ear and the jawf. Eye drops enter the nostrils and may eventually reach the pharynx probably reaching the jawf.. Kohl applied to the eye does not nullify saum if its smell is not felt in the mouth.
Medical examination and investigations: Taking blood, urine, and stool samples for investigation does not nullify saum. Diagnostic enemas and barium meal examinations nullify saum. Esophagoscopes, gastroscopes, and sigmoidoscopes that have lubricants or other substances that will remain in the jawf nullify saum. Digital rectal examination involves inserting substances into the jawf and may nullify saum. Vaginal examination may nullify saum but the reasoning involved is more complicated. Examination of the external auditory canal, endoscopy and catheterization of the urethra and the urinary bladder should in normal circumstances not nullify saum because they do not involve entry into the jawf. Imaging that does not involve using contrast media in the jawf does not nullify saum. IVP uses contract media injected in the blood stream and not the jawf.
Medical treatments: The general rule is that any substance that enters the body through any of its openings, manfadh, nullifies fasting. The openings are the two ends of the alimentary canal, the mouth and the anus. Drugs of whatever form taken orally, per anus, nullify fasting. The medication schedule can be modified such that drugs are taken only during the night hours. Sub-lingual medication absorbed from the oral cavity with none entering the esophagus may not nullify saum. All drugs that are applied externally on the skin do not nullify fating. Use of eye drops does not nullify fasting. Nose drops may nullify fasting because they could drop into the pharynx and be swallowed. Inhalants may nullify saum if they have droplets of water that can enter the jawf. Injections (sub-cutaneous, intra-muscular, and intra-venous) do not nullify saum because they do not involve putting substances into the jawf. However nourishing and rehydrating injections nullify the purpose of saum. Hormonal preparations should not be used to delay menstruation in order to avoid interrupting saum of Ramadhan.
5.4 Pilgrimage of the sick, hajj al mariidh
The physically disabled can circumbulate the ka’aba riding on a vehicle or being carried by another person. The weak can leave Muzdalifat earlier to avoid the crowds. The very old and those with debilitating chronic diseases can ask another person to perform hajj on their behalf. However if the disease is curable it is better to delay hajj until the next year. In case of a fracture, hajj is stopped and is repeated the next year. If disease occurs during hajj, the sick can be carried to Arafat because al hajj Arafat and missing Arafat is missing the whole hajj. They are assisted to complete the other rites as much as is possible
6.0 ETHICO-LEGAL ISSUES IN REPRODUCTIVE TECHNOLOGIES
6.1 Assisted Reproduction
Overview: The Law allows assisted reproduction in fulfillment of the purpose of preservation of progeny, hifdh al nasl, provided it does not violate the purpose of preserving lineage, hifdh al nasab, and does not cause injury that violates the purpose of life, hifdh al nafs, or introduce any immorality into society.
In vivo insemination, al talqiih al istinaa’e al daakhilii: Artificial intra-uterine insemination with husband’s sperm, talqiih sina’i dhaati is permitted by the Law provided safeguards are taken to ensure that spermatozoa do not get mixed up in the laboratory or the clinic. The Law prohibits artificial in vivo insemination of a wife with donated sperm from a strange man or in vivo insemination of a strange woman with the husband’s sperm because that would violate the principle of preserving lineage, hifdh al nasab.
In vitro fertilization, al talqiih al istinaa’e al khaariji: The Law permits in vitro fertilization (IVF) if the sperm and ovum are from legally wedded husband and wife and the zygote is implanted in the same wife. All other forms of IVF involving ovum or sperm donation are prohibited because they violate the principle of hifdh al nasab.
Ethical and legal issues: Several ethical issues arise in assisted reproduction: disclosure of infertility before marriage, artificial insemination after death of the husband, legality of masturbation for obtaining sperms, paternity and maternity of children born of illegal procedures, disposal and use of unused fertilized ova, sex selection and selective fetal reduction, embryo splitting, developing embryos for purposes other than their use in assisted reproduction, using embryos to produce a clone, using fetal gametes for fertilization, trans-species fertilization (mixing human and animal gametes), mixing of gametes or embryos of different parentage to confuse biological parentage, implanting the embryo in a non-human species uterus, replacing the nucleus of the embryo, embryo flushing, commercial trading in sperms, gametes, or embryos, and use of gametes from cadavers. All these can be resolved by using the relevant Purpose of the Law and consideration of the specific circumstances of each case.
2.2 Contraception
Overview: There is basic permissibility of contraception from the hadith on coitus interruptus, tarkhis fi al ‘azal. This is permission for each individual couple. Contraception as a national or community policy is repugnant to the purposes of the Law and could lead to demographic disequilibrium. Decisions on contraception must be by mutual consent of the spouses. If contraception is a dharuurat for preserving the life of the mother, the husband’s agreement is not required. Choice of the method of contraception must be based on the purposes of the Law and Principles of the Law. There is no consensus among jurists on sterilization as a method of contraception. Contraception as part of a national population control policy is prohibited by Law.
Male contraception: The permissible reversible methods for males are the condom, coitus saxanicus, coitus reservatus, and coitus interruptus.
Female contraception
Permissible reversible methods for females are either mechanical (the diaphragm, the cervical cap, the vaginal sponge) or chemical (spermicides, oral contraceptive pills). Some forms of IUD are not permitted because they cause early abortion.
Socio-demographic impact: Availability of safe contraception removes the fear of pregnancy and encourages sexual promiscuity. It also encourages temporary sexual unions devoid of child responsibilities. Wide spread use of contraception will eventually cause population imbalance by age and gender. Widespread practice of birth control makes it easier to accept and practice genocide by decreasing respect for human life.
2.3 Reproductive cloning
Overview: We must start by distinguishing cloning of individual cells and tissues from cloning of a whole organism. Cloning is not creation of new life from basic organic and non-organic matter since creation of life de novo is the prerogative of Allah alone. Cloning is a form of asexual reproduction that is common in plants and animals. Adam (PBUH) had neither a mother nor a father. Isa (PBUH) was reproduced asexually. The clone is the exact replica of the original. Genetic recombinations that are responsible for the great variety of normal reproduction do not occur in cloning.
Rulings on cloning: The Islamic tradition discourages speculative thinking about hypothetical events. Issues are discussed from the legal and ethical aspects after they have occurred. We therefore cannot engage in a detailed discussion of human cloning until it has occurred and we see its implications in practice. We can only review general ideas from what we already know about cloning with no definitive conclusions.
Spiritual quality of a clone: The issue of quality of life arises in the case of cloning if ever it becomes a reality. The product of cloning will not have the same quality, as we know it in humans today. This is because a human is both matter and spirit. During the first trimester of intra-uterine development the soul, Allah inserts ruh into the body. There is one ruh for each being. Thus the cloned product cannot have a ruh and will therefore not be human being, as we know. The product of cloning will have all the biological properties of the ordinary human being but will not have the spiritual qualities. Thus the life of the cloned product will be of little or no quality. We can only speculate how that cloned product will behave. The possibilities are frightening as the brave new world of biotechnology unfolds.
Ethical implications: The major ethical issues in cloning are: loss of human uniqueness and individuality, hazardous unexpected products from cloning, and criminal misuse of the cloning technology. Legal issues will arise in inheritance of the real son and the cloned son.
Social implications: Likely socio-demographic implications are loss of human dignity, production of human monsters with no family background, and destruction of lineage, nasab.
2.4 Abortion
Unwanted pregnancy: The issue of ‘unwanted pregnancy’ is a recent concept in human history and is associated with social stresses of modern life. The purposes of the law, maqasid al shari’at, and its principles, qawa’id a shari’at, focus on preventing ‘unwanted pregnancy’, protecting the rights of the fetus and infant, and mitigating the adverse effects of ‘unwanted pregnancy’ by social measures.
The law on feticide: Life is sacred. All lives have equal worth whether in utero or in terminal illness. Taking the life of any one person without legal justification is like killing the whole human race. Abortion is criminal homicide because life is considered to start at conception. Abortion is immoral because it encourages sexual immorality and promiscuity without fear of pregnancy. Abortion is the lesser of two evils in cases of serious maternal disease because one life is lost instead of two. In all forms of abortion whether legal or illegal, the aborted fetus must be treated with respect. It must be washed, shrouded, and buried properly. The Law prescribes severe punitive measures for causing abortion of a fetus. Diya is paid if the fetus comes out with signs of life and dies thereafter. Ghurrat, which is less than diya, is paid if the fetus comes out dead. The physician or any other accessory to abortion is guilty of the offense of causing abortion even if either or both parents consented to the procedures.
2.5 Sex selection, al tahakkum fi al jins
Sex preference is natural. Gender selection is by Allah (shura: 49) and no human efforts will contradict Allah’s will. Human efforts can only succeed if Allah wills so. Efforts to get an offspring of a particular gender are in general permissible because the dua that prophets made are considered part of the effort. Discussion centers on the methods used because some are permitted while others are prohibited. Natural methods (selecting days of copulation before and after ovulation & changing upper vaginal chemistry artificially) are not effective. Rulings are still being discussed on methods such as separation of male and female sperms by centrifuging followed by in vivo insemination and gender pre-selection and implanting only zygotes of desired gender in in vitro fertilization. Some jurists consider sex selection permissible for the couple but are prohibited when they are part of community or national policy. There are long-term consequences that must be considered. Severe gender imbalance will threaten marriage and lead to family breakdown. Eventually the purpose of the law to preserve progeny, hifdh al nasl, cannot be fulfilled.
2.5 Genetic testing and genetic counseling
Genetic testing is used for disease diagnosis, pre natal diagnosis, genetic screening, criminal investigations, and settling paternity issues. Genetic counseling is carried out before and after genetic testing. The objective of counseling before testing is to provide information about genetic disorders and the risks of disease to individuals and families so that they may make informed decisions. Pre marital counseling is recommended for close relatives. Genetic testing can be carried only if there is informed consent of competent adults. Genetic data is confidential and cannot be disclosed except following guidelines.
3.0 ETHICO-LEGAL ISSUES IN MEDICAL AND SURGICAL TECHNOLOGIES
3.1 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.
3.2 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.
3.3 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.
3.4 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.
3.5 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 do 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.
4.0 ISSUES AFTER DEATH
4.1 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 5th 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[22]. 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[23]. 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.
4.2 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 5th 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.
4.3 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.
4.4 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.
5.0 ISSUES OF PRIVACY, CONFIDENTIALITY, and CONSENT
5.1 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.
5.2 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.
5.3 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.
5.5 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[24]. Anybody who kills himself with a metal weapon will be punished with the same weapon in the hereafter[25] and will be denied entry into paradise[26]. The funeral prayer is not offered for a deceased who killed himself[27]. 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[28]. 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[29]. 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[30]. 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[31]. 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[32] [33] and all events are under Allah's pre-determination[34]. They believe that pre-determination covers both the good and the bad[35]. They know that all human affairs are in the hands of Allah[36] and that the human should therefore seek support from Allah and surrender all affairs to Him[37].
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[38]. The second benefit is to avoid excessive joy and sadness[39]. 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[40] and exercises patience[41].
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[42] and that good and bad events are both a test for humans[43]. 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[44]. What may appear to be bad may turn out to be good[45]. 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.
6.0 PHYSICIAN ETIQUETTE, adab al tabiib
6.1 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 family 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.
6.2 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.
6.3 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[46]. An honest businessman is held in high regard[47]. Leniency in transactions is encouraged[48]. Full disclosure is needed in any transaction[49]. Measures and scales must be fulfilled[50]. Bad business practices are condemned. There is no blessing in immoral earnings[51]. Selling over another’s sale is prohibited[52]. Cheating is condemned[53]. Also condemned are financial fraud including criminal breach of trust, riba on bills, fee splitting, and bribery[54]. 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[55]. Medical fees cannot be fixed by government because the Prophet refused to fix prices[56].
6.4 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.
6.5 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 existed 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.
7.0 ETHICO-LEGAL TRAINING FOR HEALTHCARE WORKERS: AN ISLAMIC DIMENSION
1.0 INTRODUCTION
This paper is an outline of preliminary ideas about training healthcare workers in ethics from an Islamic perspective. Ethics are universal values and there is convergence among many religions and belief systems about these values. Islam differs from others in that ethics is part of its Law. This makes the enforcement of medical ethics a religious duty that many Muslim health care workers will respect because it is based on belief and not coercion.
The training will not be confined to Islamic sources only. Western theories and principles of ethics will also be covered and comparisons will be made with the Islamic ones. The Islamic sources of ethico-legal guidance are from the Qur’an and sunnat. If a direct text is not available, the theory of the Purposes of the Law, maqasid al shari’at, and legal axioms, qawa’id al fiqh, are used to derive ethical rulings. Guidance is also obtained from books and edicts, fatawa, on medical jurisprudence, al fiqh al tibbi. There is no one western theories of medical ethics that can be compared to the theory of maqasid al shari’at. The 4 western principles of ethics (autonomy, beneficence, nonmalefacence, and justice) can all be subsumed under one Islamic legal principle of injury, qa’idat al dharar.
2.0 THE CURRICULUM OUTLINE
2.1 Theories and principles of medical ethics
2.1.1 Purposes and Principles of Medicine and ethics, maqasid wa qawa’id al tibaabat
2.1.2 Regulations of Medical Procedures, dhawaabit al tatbiib
2.1.3 Regulations of Research Procedures, dhawaabit al bahath
2.1.4 Regulations of Physician Conduct, dhawaabit al tabiib
2.1.5 Regulations about Professional Misconduct, dhawaabit al inhiraaf al mihani
2.2 The etiquette of the physician, adab al tabiib
2.2.1 Etiquette with Patients and Families
2.2.2 Etiquette with the Dying
2.2.3 Etiquette with the Health Care Team
2.2.4 Etiquette of Research on Humans
2.3 Issues in disease conditions, fiqh al amraadh
2.3.1 Uro-Genital System, jihaaz bawli & jihaaz tanaasuli
2.3.2 Cardio-Respiratory System, qalb & jihaaz al tanaffus
2.3.3 Connective Tissue System,
2.3.4 Alimentary System, jihaaz al ma idat
2.3.5 Sensory Systems, al hawaas
2.3.6 Patho-physiological Disturbances
2.3.7 General Systemic Conditions
2.3.8 Psychiatric conditions, amraadh nafsiyyat
2.3.9 Neurological conditions, amraadh al a’asaab
2.3.10 Age-Related Conditions, amraadh al ‘umr
2.4 Issues in modern medicine fiqh mustajiddaat al tibb
2.4.1 Assisted Reproduction, taqniyat al injaab
2.4.2 Contraception, mani’u al haml
2.4.3 Reproductive Cloning, al istinsaakh
2.4.4 Abortion, isqaat al haml
2.4.5 Genetic Technology, taqniyat wiraathiyyat
2.4.6 Artificial Life Support, ajhizat al in’aash
2.4.7 Euthanasia, qatl al rahmat
5.4.8 Solid Organ Transplantation, naql al a’adha
5.4.9 Stem Cell Transplantation, naql al khalaayat
5.4.10 Change of Fitra, taghyiir al fitrat
3.0 METHODOLOGY OF TRAINING
The ethico-legal training program starts from the premise that there is a gap between what is and what ought to be and that this gap can be closed by training. Training is learning on the job and is therefore very practical in nature. The trainers do not give lectures but rather facilitate discussion and interaction among participants that leads to learning. The training will be based entirely on study and discussion of cases of actual ethical problems that are encountered in hospital practice. Source material will be provided in advance of any workshops. As far as possible training will be brought to each health center of hospital. A total of 5 workshops each lasting 2-3 hours will be needed to cover the curriculum. Each workshop will be opened by a short introduction from the workshop facilitator. Then the participants will be divided into discussion groups each dealing with a group of related cases. Groups will present their findings in the plenary session followed by a general discussion. The facilitator will summarize the principles learned as well as correct any misunderstandings.
4.0 TRAINERS AND TRAINING MATERIALS
Success of the project requires holding an initial training program to train the trainers. Then the trainers will train others. Resource material will be provided as required. Additional material can be obtained from http://omarkasule.tripod.com.
YOUR NOTES
[1] (BG69 Ibn Majah and Ahmad)
[2] (MB171 Bukhari 1:228)
[3] (MB170 Bukhari 1:227)
[4] (BG74 Darqutni)
[5] (MB171 Bukhari 1:228)
[6] (KS154 Abu Daud K1 B118, Darimi K1 B85, Muwatta K2 H108)
[7] Bukhari K30 B20
[8] Bukhari K30 B45
[9] Ahmad 5:147
[10] Bukhari K30 B22
[11] Bukhari K65 S2
[12] Bukhari K65 S2 B25
[13] 2:183-185
[14] Bukhari 3:168
[15] Bukhari K65 S2 B25
[16] Bukhari K65 S2 B25
[17] Bukhari K6 B6
[18] ( )
[19] Bukhari K30 B22
[20] Tirmidhi K6 B69
[21] Abudaud 2364
[22] (Bukhari K23 B51)
[23] (Muslim K11 H58)
[24] Qur’an 2:195
[25] Bukhari Kitaab al janaiz Baab 84
[26] Muslim Kitaab al iman Hadith 178
[27] (Muslim Kitaab al Janaiz Hadith 107
[28] Qur’an 15:23
[29] Qur’an 25:3
[30] Qur’an 17:33
[31] Qur’an 5:32
[32] Qur’an 25:2
[33] Qur’an 33:38
[34] Qur’an 65:3
[35] Muslim Kitaab al Iman Hadith 1
[36] Muslim Kitaab al qadar Baab 17
[37] Muslim Kitaab al qadar Hadith 34
[38] Ahmad and Tirmidhi
[39] Qur’an 57:22-23
[40] Qur’an 64:11
[41] Qur’an 3:120, 3:186
[42] Qur’an 4:78
[43] Qur’an 21:35
[44] Qur;an 2:216
[45] Qur’an 2:216
[46] Zaid Hadith 539
[47] Tirmidhi Kitaab al Buyu’u Baab 4
[48] Bukhari Kitaab al Buyu’u Baab 16
[49] Ibn Majah Kitaab al Tijaarat Baab 45
[50] Muwatta Kitaab al Buyu’u Hadith 99
[51] Darimi Kitaab al Riqaaq Baab 60
[52] Bukhari Kitaab al Buyu’u Baab 58
[53] Bukhari Kitaab al Buyu’u Baab 19
[54] Abudaud Kitaab al Aqdhiyat Baab 4
[55] Bukhari Kkitaab al ijarah Baab 16
[56] Abudaud Kitaab al Buyu’u Baab 49