110516L - HOW TO SOLVE AN ETHICO-LEGAL PROBLEM

Lecture by Professor Omar Hasan Kasule Sr. for 4^th Year Medical Students Faculty of Medicine King Fahad Medical City Riyadh on 16^th May 2011

1.0 STAGES OF RATIONAL SYSTEMATIC PROBLEM SOLVING 1

• analysis of the environment
• recognition of the problem
• identification of the problem
• determination of the ownership of the problem
• definition of the problem
• classification of the problem
• prioritizing the problem
• collection of information
• making assumptions and forecasts
• generating decision alternatives
• Apply laws, fatawa, and principles
• selection of the best alternative
• analysis of the impact of the chosen alternative
• implementation, control of the implementation
• evaluation of the results.

2.0 AUTHORITATIVE SOURCES

2.1 At the National/International Levels

• The Mufti of the Kingdom of Saudi Arabia
• The Grand Ulama Authority
• The Fiqh Academy of the Organization of the Islamic Conference
• The Fiqh Academy of the World Muslim League

2.2 Local Level

• Ethics Commiittee in the Hospital
• Local Scholar

2.3 Existing Laws and Regulations

• Code of Medical Ethics by the Saudi Council for Health Specialties
• Health Professions Practice Regulations by the Saudi Council for Health Specialties

3.0 SOLUTIONS FROM CLASSICAL SOURCES

3.1 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.

3.2 The sunnat comes second to the Qur'an as a primary 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.

3.3  Ijma and Qiyaas are secondary sources of 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.

3.4 Other secondary sources

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.

3.5 METHODOLOGY OF EXTRACTING LEGAL RULINGS, tariqat istinbat al ahkaam, tariqat al istidlal

Nass can be muhakkam or mutashabih. The muhakkam can be ‘aam, khaas (amr and nahy), or mushtarak. Amr can be wajib, manduub, or mubaah. Nahy can be haram or makruh. Nahy implies both batil and fasid in ibadat. In mu’amalat a fasid transactions is irregular but not batil and has some legal effect. Legal reasoning uses the tools of agreement, ashbaahu, difference, furuuqaat, or exceptions, nadhair, Conflict of evidences is apparent and not real and is due to different views of mujtahidiin. It is resolved by the tools of nasakh, tarjih, or tawfiq. Nasakh is abrogation of one daliil. by another. Tarjiih is an intellectual effort to compare two or more rulings and select the best of them on the basis of strength of daliil. Tawfiq is combining two contradictory daliil to give one ruling.

4.0 SOLUTIONS USING MAQASID AL SHARI'AT

4.1 PROTECTION OF DDIIN

Protection of ddiin is essentially involves ibadat in the wide sense that every human endeavor is a form of ibadat. Thus medical treatment makes a direct contribution to ibadat by protecting and promoting good health so that the worshipper will have the energy to undertake all the responsibilities of ibadat. The principal forms of physical ibadat are the 4 pillars of Islam: prayer, salat; fasting, siyaam; pilgrimage, and hajj. A sick or a weak body can perform none of them properly. Balanced mental health is necessary for understanding aqidat and avoiding false ideas that violate aqidat. Thus medical treatment of mental disorders thus contributes to ibadat.

4.2 PROTECTION OF LIFE, hifdh al nafs

The primary purpose of medicine is to fulfill the second purpose of the shari’at, the preservation of life, 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 the nutritional functions are well maintained. Medical knowledge is used in the prevention of disease that impairs human health. Disease treatment and rehabilitation lead to better quality health.

4.3 PROTECTION OF PROGENY, hifdh al nasl

Medicine contributes to the fulfillment of this function by making sure that children are cared for well so that they grow into healthy adults who can bear children. Treatment of infertility ensures successful child bearing. The care for the pregnant woman, perinatal 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.

4.4 PROTECTION OF THE MIND, hifdh al ‘aql

Medical treatment plays a very important role in protection of the mind. Treatment of physical illnesses removes stress that affects the mental state. Treatment of neuroses and psychoses restores intellectual and emotional functions. Medical treatment of alcohol and drug abuse prevents deterioration of the intellect.

  

4.5 PROTECTION OF WEALTH, hifdh al mal

The wealth of any community depends on the productive activities of its healthy citizens. Medicine contributes to wealth generation by prevention of disease, promotion of health, and treatment of any diseases and their sequelae. Communities with general poor health are less productive than a healthy vibrant community. 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. The question may be posed whether the effort to protect life is worth the cost. The issue of opportunity cost and equitable resource distribution also arises.

5.0 SOLUTIONS FROM PRINCIPLES OF THE LAW, qawaid al fiqh

5.1 THE PRINCIPLE OF INTENTION

The Principle of intention comprises several sub principles. The sub principle that 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 that means are judged with the same criteria as the intentions implies that no useful medical purpose should be achieved by using immoral methods.

5.2 THE PRINCIPLE OF CERTAINTY, qaidat al yaqeen

Medical diagnosis does cannot reach the legal standard of yaqeen. Treatment decisions are best on a balance of probabilities. Each diagnosis is treated as a working diagnosis that is changed and refined as new information emerges. This provides for stability and a situation of quasi-certainty without which practical procedures will be taken reluctantly and inefficiently. Existing assertions should continue in force until there is compelling evidence to change them. Established medical procedures and protocols are treated as customs or precedents. What has been accepted as customary over a long time is not considered harmful unless there is evidence to the contrary. All medical procedures are considered permissible unless there is evidence to prove their prohibition. Exceptions to this rule are conditions related to the sexual and reproductive functions. All matters related to the sexual function are presumed forbidden unless there is evidence to prove permissibility.

5.3 THE PRINCIPLE OF INJURY, qaidat 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 a harm has priority over pursuit of a benefit of equal worth. If the benefit has far more importance and worth than the harm, then the pursuit of the benefit has priority. Physicians sometimes are confronted with medical interventions that are double edged; they have both prohibited and permitted effects. The guidance of the Law is that the prohibited has priority of recognition over the permitted if the two occur together and a choice has to be made. If confronted with 2 medical situations both of which are harmful and there is no way but to choose one of them, the lesser harm is committed. A lesser harm is committed in order to prevent a bigger harm. In the same way medical interventions that in the public interest have priority over consideration of the individual interest. The individual may have to sustain a harm in order to protect public interest. In the course of combating communicable diseases, the state cannot infringe the rights of the public unless there is a public benefit to be achieved. In many situations, the line between benefit and injury is so fine that salat al istikharat is needed to reach a solution since no empirical methods can be used.

5.4 PRINCIPLE OF HARDSHIP, qaidat al mashaqqat

Medical interventions that would otherwise be prohibited actions are permitted under the principle of hardship if there is a necessity. Necessity legalizes the prohibited. In the medical setting a hardship is defined as any condition that will seriously impair physical and mental health if not relieved promptly. Hardship mitigates easing of the sharia rules and obligations. Committing the otherwise prohibited action should not extend beyond the limits needed to preserve the Purpose of the Law that is the basis for the legalization. Necessity however does not permanently abrogate the patient’s rights that must be restored or recompensed in due course; necessity only legalizes temporary violation of rights. The temporary legalization of prohibited medical action ends with the end of the necessity that justified it in the first place. This can be stated in al alternative way if the obstacle ends, enforcement of the prohibited resumes/ It is illegal to get out of a difficulty by delegating to someone else to undertake a harmful act.

5.5 THE PRINCIPLE OF CUSTOM or PRECEDENT, qaidat al urf

The standard of medical care is defined by custom. The basic principle is that custom or precedent has legal force. What is considered customary is what is uniform, widespread, and predominant and not rare. The customary must also be old and not a recent phenomenon to give chance for a medical consensus to be formed.