170511P - CONTEMPORARY MEDICAL ETHICO-LEGAL ISSUES FROM AN ISLAMIC LEGAL PERSPECTIVE

Lecture series for Kashmiri Nurses at King Fahad Medical City given in May 2017 by Professor Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Department of Bioerhics Faculty of Medicine King Fahad Medical City.

ABSTRACT

The paper uses the theory of Purposes of the Law, maqasid al shari’at, to discuss contemporary ethico-legal issues in medicine. Ethical procedures conform to and do not violate the 5 maqasid al shari’at which are: preservation of diin, hifdh al ddiin; preservation of life, hifdh an nafs; preservation of progeny, hifdh al nasl; preservation of the intellect, hifdh al ‘aql; and preservation of resources, hifdh al maal. Also used in the discussion are legal axioms, qawa’id al shari’at, that assist in ethico-legal reasoning.

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 an occasion, sabab al nuzuul. It was memorized and was 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 as: matrimonial affairs, munaakahaat70; civil transactions, mu’amalaat 70; criminal affairs, jinaayat 30; financial transactions,maaliyaat, 10 verses; judicial affairs, qadha 13 verses; governmental affairs 10 verses; and international law 25 verses. The Qur’an is comprehensive and is complete but deals with issues in a generic and not specific way. Its verses are clear-cut, muhkamat, or allegorical, mutashabihat. It challenges the intellect, does not indoctrinate, and gives room for opposing views. 

The Qur’an is divided into 114 surats. Each surat starts with the basmalah except surat al baraa. It is divided into 30 juz’useach divided into 2 halves, hizbs. Quarters,rub’u or eights, 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 tartiilor astajwid.

As a source of legislation the Qur’an provides general foundations and principles. 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(chain of transmitters), and matn(text). 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 can be tashri’I if legislative or ghayrtashri’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’uhadith. 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 ijmasariihor ijmasukuuti. 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, ‘aadator ‘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. Istihsaanis preference for one qiyaas by a mujtahid. Istislaahis assuring a benefit or preventing a harm used in mu’amalat but not in ‘ibadat. Maslahatmursalat is public interest based on ra’ay when there is no nass. Sadd al dhari’atis 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, fardhaini, cannot be delegated.  Performance of a collective obligation, fardhkifai, 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, sunnatmuakkada; and not confirmed,sunnat ghayr muakkadat. The sunnatmuakkadat is what the Prophet used to carry out continuously and left it only on rare occasions.

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 toharaam 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, mutashaabihaatFor inconclusive matters what leads to bad or evil is makruuh and what leads to good is manduub. 

2.4 Offensive, makruuuh

Offensive/reprehensible/disapproved,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 consequences of doing them or not doing them

3.0 THE 5 PURPOSES OF THE LAW IN MEDICINE, MAQASID AL SHARI’AT FI AL TIBB

3.1 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. 

3.2 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.

3.3 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.

3.4 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.

3.5 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 complications. 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.

4.0 THE 5 PRINCIPLES OF THE LAW IN MEDICINE, QAWA’ID AL FIQH FI AL TIBB

4.1 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.

4.2 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. 

4.3 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 biggerinjury. 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.

4.4 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 daruuraattubiihu 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. 

4.5 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.

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. Wudhu can ve accomplished by use of a wet towel as in a bed bath.

5.2 Patient hygiene: 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 nasj but must be washed away immediately. Freshly spilled blood (venous or arterial) is not najs but must be cleaned away with waterand does not require repeating wudhu. Pleural, peritoneal, pericardial, and synovial fluids are not najs but must be washed away if they are outside their respective cavities. Respiratory secretions are not najs 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 copious may contain intestinal contents and should always be considered najs. The vomitus of a baby is treated like its urine (will be discussed later). 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. Body fluids involved in colonoscopy are najs. Stomas have to be cleaned and salat is done even with continuing discharging. 

5.3 Haidh

5.3.1 Duration of menstruation: The menstrual flow may be prolonged in association with menorrhagia 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. 

5.3.2 Dysfunctional uterine bleeding (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. 

5.3.3 Artificial regulation of menstruation: 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. 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 principles of benefit and harm. 

5.4 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 extra night salat, qiyam al layl, and try to fulfill the 5 prescribed salat. Salat can be interrupted for an urgent need that could be medical or otherwise. Women are excused from salat during the period of menstruation.

5.5 Saum for the patient, saum al mariidh

5.5.1 Measures to prevent physiological harm insaum: The prophet (PBUH) taught measures to ensure that saum does not cause physiologic damage. Saum continuously from day to day, wisaal, was forbidden. Early iftaar was recommended Delaying suhuur was recommended 

5.5.2 Medical guidelines on diet in saum. The medical aim in saum should be maintaining normal body weight or actually reducing it if overweight. Over-eating at iftaar and suhuur should be avoided because they 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 during saum on very hot days.

5.5.3 Old age: Old age is considered an excuse from saum because of physiological fragility and delicate nutritional requirements. 

5.5.4 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 saum because diabetic control is more difficult in pregnant women making fasting doubly hazardous for both the mother and the fetus. 

5.5.5 Other conditions of Illness: The sick are allowed to break saum if trusted physicians fear that saum will be deleterious to good health. The missed saum is made up later. If the illness is chronic, maradhmuzmin, 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 saum, qadha al saum, for days missed by a deceased disabled by disease in terminal illness. 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. 

5.5.6 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.

5.5.7 Saum in pregnancy, menstruation, and the post-partum period: The pregnant woman, al hublah, is allowed to break saum if saum is a health risk. The breast-feeding woman or nursing woman, al murdhi', is allowed to break saum if there is health risk. The exemption from fasting is obligatory for the menstruating woman, al haidh, and for a woman in the post-partum period, nifaas. Any fasting undertaken in haidh and nifaas is invalid. 

5.5.8 Concept of jawf: Any potentially nutritious substance that enters and stays the 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.  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.  Madhmadhatand istinshaaq in wudhu are permitted during saum it is however offensive to exaggerate them.  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. 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. Putting fluid in the ear canal until it reaches 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.

5.5.9 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.

5.5.10 Medical treatments: The general rule is that any substance that enters the body through any of its openings, manfadh, nullifies saum. The openings are the two ends of the alimentary canal, the mouth and the anus. Drugs of whatever form taken orally or 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 saum. 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.  

5.6 Pilgrimage of the sick, hajj al mariidh

The physically disabled can circumbulate the ka’aba, tawaaf, 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 ISSUES OF PRIVACY, CONFIDENTIALITY, and CONSENT

6.1 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 cannot disclose confidential information to a third party without the consent of the patient. Information can be released without the consent of the patient for purposes of medical care, for criminal investigations, and in the public interest. Release is not justified without patient consent for the following purposes: education, research, medical audit, employment or insurance.

6.2 Consent and refusal of treatment for competent adults

6.2.1 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. 

6.2.2 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.

6.2.3 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. 

6.2.4 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. 

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

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

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

6.2.8 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.

6.3 Consent and refusal of treatment for incompetent adults and children’

6.3.1 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. 

6.3.2 Consent for 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. 

6.3.3 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. 

6.3.4 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. 

7.0 ETHICO-LEGAL ISSUES IN REPRODUCTIVE TECHNOLOGIES

7.1 Assisted Reproduction

7.1.1 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.

7.1.2 In vivo insemination, al talqiih al istinaa’e al daakhilii: Artificial intra-uterine insemination with husband’s sperm, talqiihsina’idhaati 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.

7.1.3 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 during the life of the husband and during lawful wedlock. IVF after divorce or death of the husband is not allowed.  All forms of IVF involving ovum or sperm donation are prohibited because they violate the principle of hifdh al nasab.

7.2 Contraception

7.2.1 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. 

7.2.2 Male contraception: The permissible reversible methods for males are the condom, coitus saxanicus, coitus reservatus, and coitus interruptus.

7.2.3 Female contraception: Permissible reversible methods for females are either mechanical (the diaphragm, the cervical cap, the vaginal sponge) or chemical (spermicides, oral contraceptive pills). 

7.3 Abortion 

7.3.1 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.

7.3.2 Abortion for maternal disease. 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. 

7.4 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 permissible but are generally not effective. 

7.5 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. 

8.0 ETHICO-LEGAL ISSUES IN MEDICAL AND SURGICAL TECHNOLOGIES

8.1 Artificial Life Support

8.1.1 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). Generally brain stem death is recognized as legal death justifying stopping all forms of artificial life support.

8.1.2 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. 

8.1.3 Purposes and principles of the Law in artificial life support. 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. The principle of certainty strictly forbids action based on uncertainty, shakk. 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.

8.1.4 Withholding / withdrawal: A distinction in Law exists between withholding life support and withdrawing it the former being an easier decision if the case is futile. 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 more legal or ethical issues

8.2 Euthanasia

8.2.1 Definition: Euthanasia for to cause merciful death to a patient in severe pain or suffering is illegal. Active euthanasia, an act of commission, is taking 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. 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.

8.2.2 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. 

8.2.3 Analysis using principles of the law, qawaid al fiqh: 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 conspiracy to kill the patient for selfish benefit. Euthanasia reverses the customary role of the nurse as a preserver into a destroyer of life. 

8.2.4 Refusal of treatment vs euthanasia: A legally competent patient can decide to refuse treatment and this may result in death. The distinction from euthanasia lies in the underlying intention. If the decision to refuse treatment is motivated by a desire to die it is not permitted since that would be euthanasia. 

8.3 Solid organ transplantation

8.3.1 Background: Organ harvesting and transplantation are generally permitted under the purpose of preserving life, hifdh al nafs. In each case the principle of injury is applied to the donor and the recipient to make sure that the benefits outweigh the risks.

8.3.2 Consent: organs cannot be harvested or transplanted without free and voluntary consent. If the donor is deceased the family can decide to donate the organs.

8.3.3. Abuses: selling organs or kidnapping people to take their organs by force are criminal and are severely punished. It is always best to harvest organs from relatives.

8.4 Cosmetic and reconstructive surgery 

8.8.1 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.

8.8.2 Beautification: Allah made humans in a perfect image. He however also allowed them to enhance their physical appearance by wearing clothes and 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. 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. 

8.8.3 Reconstructive/restorative surgery: Reconstructive/restorative surgery is carried out to correct natural deformities, deformities due to disease, and deformities due to complications of disease treatment. Malformations may be congenital or acquired. The distinction is not important because many of the congenital malformations are due to environmental factors operating in utero. The purposes of surgery on congenital malformations are: restoration of the normal appearance to relieve psychological pressure or embarrassment and restore function. These purposes do not involve change of fitra but restoration of fitra to its state before the injury. Similarly restorative surgery for deformities due to disease or treatment does not involve change of fitra since they are returning to the normal. 

8.8.4 Cosmetic surgery: Cosmetic surgery has a sole purpose of enhancing beauty with no medical or surgical indication. Expensive cosmetic surgery violates the purpose of preserving wealth, hifdh al maal. It also violates the principle of preservation of religion, hifdh al ddiin, if carried out with the belief that Allah’s creation was not perfect. 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. 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.  

8.8.5 Allowed and prohibited procedures: 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. Circumcision is an allowed procedure although it involves change of fitra. Male circumcision is mustahabb and is recommended on hygienic grounds. Fraudulent procedures that are prohibited are wearing wigs, and dyeing hair to hide age.

9.0 ISSUES AFTER DEATH

9.1 Embalming

9.1.1 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.

9.1.2 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 .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. 

9.1.3 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. 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.

9.2 Autopsy

9.2.1 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.  

9.2.2 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. 

9.2.3 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.

9.2.4 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 fulfil 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. 

9.2.5 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.

9.2.6 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. 

9.3 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.

10.0 ETHICO-LEGAL ISSUES IN RESEARCH

10.1 Research on Humans

10.1.1 Purposes of the law in human experimentation: The Islamic ethical theory on research is based on the 5 purposes of the Law, maqasid al shari’at, religion, life, progeny, the mind, and wealth. If any of the 5 necessities is at risk permission is given to undertake human experiments that would otherwise be legally prohibited. Therapeutic research fulfills the purpose of protecting health and life. Infertility research fulfils the purpose of protecting progeny. Psychiatric research fulfills the purpose of protecting the mind. The search for cheaper treatments fulfills the purpose of protecting wealth.

10.1.2 Principles of the law in human experimentation: The 5 principles of the Law guide research. Research is judged by its underlying and not expressed intentions. Research is prohibited if certainty exists about beneficial existing treatment. Research is allowed if benefit outweighs the risk or if public interest outweighs individual interest. If the risk is equal to the benefit, prevention of an injury has priority over pursuit of a benefit of equal worth. The Law chooses the lesser of the two evils, injury due to disease or risk of experimentation. The principle of custom is used to define standards of good clinical practice as what the majority of reasonable physicians consider as reasonable. Under the doctrine of istishaab, an existing treatment is continued until there is evidence to the contrary. Under the doctrine of istihsaan a physician can ignore results of a new experiment because of some inclination in his mind. Under the doctrine of istislaah preventing an injury has priority over obtaining a benefit.

10.1.3 Informed consent: Informed consent by a legally competent research subject is mandatory. Informed consent does not legalize risky non-therapeutic research with no potential benefit. It is illegal to force participation of the weak (prisoners, children, the ignorant, mentally incapacitated, and the poor) in clinical trials even if they sign informed consent forms.

10.1.4 Outstanding ethico-legal issues: Research on fetal human tissues may encourage abortion. Cadaver dissection and post mortem examination are permitted under necessity. Use of human bodies in auto crass experiments violates human dignity. Genetic experiments may cause diseases hitherto unknown. The Law allows research on ageing as long as the aim is not prolongation of life or preventing death because those aspects are under Allah’s control.  

10.2 Research on animals

10.2.1 Enjoining kindness to animals: The prophet enjoined kindness to animals. Saving animals from danger is a noble act. There is reward for kindness to animals. 

10.2.3 Prohibiting cruelty to animals: Cruelty and physical abuse of animals are prohibited. There is severe punishment is reserved for cruel treatment if animals. Face branding, beating, cursing, sexual abuse, sexual abuse, and wanton killing of animals were forbidden. 

10.2.3 Animal research: purpose and relevance: The purpose of animal research is to spare humans from risk. Findings in animals are relevant to humans because of similarities in physiology and biochemistry. However findings in animals cannot be directly transferred to humans; research on humans is still necessary for a definitive conclusion. Animal research is exploratory and not definitive. 

10.2.4 The Law and animal experimentation: The position of the Law is that animal experiments are allowed if a prima facie case can be established that the result of the research is a necessity, dharuurat. Dharuurat under the Law is what is necessary for human life. The regulations of necessity require that no more than the absolute minimum necessary should be done, al dharurattuqaddar bi qadiriha. Animal research has definite risks for the animals that are not balanced by any benefits: pain, suffering, permanent injury, inhumane treatment and operations, and being killed (sacrificed). Thus use of animals in justifiable on the basis of taskhiir and not any benefits that accrue to the animals. The risks to humans from animal research are minimal in the short term; long-term effects are difficult to fathom. The purposes and principles of the Law can be used to analyze all legal aspects of animal experimentation.

10.2.5 Outstanding ethico-legal issues: There are limits to taskhiir. Humans were not given a carte blanche to exploit animals in any way they liked. They have to conform to the Law and moral guidelines. If the results of animal experimentation will lead to protection of human life, then research is allowed to proceed because then it is a necessity. This is similar to killing animals for food, a necessity for human life. If research is for general scientific curiosity unrelated to any tangible human benefit, then it is beyond the authorization of taskhiir. There are differences among animals. Animals considered dangerous and must be killed. Use of such animals for research should therefore raise fewer ethical objections than other animals. All types of animals used in research cannot be subjected to unnecessary pain and suffering. Animals whose flesh is edible are preferably used in research. Use of animals that are haram like the pig should be avoided as much as possible and should be considered only in cases of dharuurat. Animals, like humans, have rights to enjoyment of life and good health. The researcher must therefore follow Islamic etiquette to minimize animal suffering. The basmalah is said at the start of an animal experiment, similar to slaughter of animals for food, in recognition of the fact that the experiment is carried out with the permission of the creator under the requirements of taskhiir. The animals must be shown kindness and respect. They should not be subjected to the psychological pain of seeing other animals in pain or being sacrificed. Pain must be minimized both during the experiment and when the animal is being terminally sacrificed. This is based on the legal requirement of slaughtering animals using a sharp knife and as quickly as possible to prevent pain and suffering. The long-term effects of the experiment on the animal must be considered and efforts made to decrease suffering and pain. The nutritional and medical needs of the animal must be taken care of before, during, and after the research.

11.0 PHYSICIAN ETIQUETTE, adab al tabiib

11.1 Good doctor etiquette with patients and their families’

11.1.1 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.

11.1.2 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 permissionwhen 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. 

11.1.3 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. 

11.1.4 Dealing with the family

Visits by the family fulfill the social obligation of joining the kindred and should be encouraged. The family members 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. 

11.2 Good doctor etiquette in the health care team

11.2.1 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. 

11.2.2 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. 

11.2.3 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). 

11.2.4 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.

11.3 Doctor misconduct

11.3.1 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.

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

Breach of trust is a cause for censure because a physician must be a respected and trusted member of the community. Sexual misbehavior such as zina and liwaat are condemned. Fraudulent procurement of a medical license, sale of medical licenses, and covering an unqualified practitioner indicate bad character. Physicians can abuse their position by abuse of trust (e.g. harmful or inappropriate personal and sexual relations with patients and their families), abuse of confidence (e.g. 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.

11.3.3 Public professional misconduct

Physicians in private practice must adopt good business practices. Halal transactions are praised. An honest businessman is held in high regard. Leniency in transactions is encouraged. Full disclosure is needed in any transaction. Measures and scales must be fulfilled. Bad business practices are condemned. There is no blessing in immoral earnings. Selling over another’s sale is prohibited. Cheating is condemned. Also condemned are financial fraud including criminal breach of trust, riba on bills, fee splitting, and bribery. 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 cannot be patented as an intellectual property. Physicians are entitled to a reasonable fee. Medical fees cannot be fixed by government because the Prophet refused to fix prices.

11.4 Medical malpractice / negligence

11.4.1 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. 

11.4.2 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. 

11.4.3 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.

11.4.4 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.

11.4.5 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.

11.5 Legal tests for negligence: Bolam as modified by Bolitho’

11.5.1 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.

11.5.2 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.

12.0 STRESS IN MEDICAL PRACTICE

12.1 Definition of stress

Stress is a psychological, emotional, and physiological reaction to a stressor. It is considered part of normal human adaptation if it is within certain limits. It becomes abnormal or pathological in situations of over-reaction such that the adverse consequences of the stress reaction cancel out the advantages. The stress threshold varies from person to person and from stressor to stressor. What stresses one person may not stress another one. The same individual could react to the same stressor in different ways depending on the social and personal context. The underlying cognitive and spiritual qualities modulate reaction to stressors.

12.2 Causes of stress

Stressful events are traumatic, uncontrollable, and unpredictable. Examples are: trauma, temperature, emotions. It is part of human nature to be inpatient. Thus when confronted by a problem that cannot be resolved quickly they become stressed. Life is full of difficulties. Each difficulty is accompanied by what makes it easy. Patience is called for in moments of difficulty. However many people when in trouble forget this and fall into stress.

12.3 Reaction to stress

Psychological reactions to stress are anxiety, anger, aggression, apathy and depression, cognitive impairment. The physiological reaction to stress manifests as the usual signs of adrenaline releases. Long-term stress affects good health. 

12.4 Coping with stress

People cope with stress in different ways. Coping with stress may be by denial, projection, repression, rationalization, or reaction formation. The type of reaction also depends on the personality type, spiritual preparation, and experience in life. 

12.4.1 Eliminate the stressor is the quickest treatment for stress. This however does not always succeed in returning the person to the normal state because memories of unpleasant stressors may continue eliciting stressful reactions for a longer time. Emotional disequilibrium is a disease that must be treated. Every disease has a treatment. Once emotional disorders have occurred, the best approach is to remove the cause if it can be identified. Then we undertake the task of rebuilding, repairing, and restoring faith. This is supplemented by supplication, 

12.4.2 Spiritual approaches involve repairing the relation to the Creator so that the victim feels empowered to cope more effectively with the stressor or even ignore it altogether. The most effective approach to dealing with emotional disorders is to correct / restore the faith. This requires clarifying certain relationships and clarifying the issues of causality. A person must know the correct relation with God, with his own body, with other humans, and with the eco-system. Any defect in any one of these relationships will lead to emotional disequilibrium. Understanding causality removes a big burden of guilt from a person for what has gone wrong. Nothing happens without God’s permission. This however does not remove personal responsibility for actions. 

12.4.3 Cognitive approach: The Cognitive approach to stress is to make the person realize that there is no rational basis for the stress over-reaction. Empirical analysis of the problem may lead us to conclude that it is not worth worrying over. We need to understand that problems are a test. The final result is not having a problem but knowing how to deal with it. Ignorance of human limitations (physical, cognitive, sensory) makes humans stress themselves over failures. If they were wiser they would not blame themselves because they would know that some tasks are beyond their ability. Human perception is not accurate. What is perceived as a problem may not be a significant problem or may not a problem at all and this would become obvious with passage of time. 

12.4.4 Supplication, dua: Supplication is very effective in dealing with emotional disturbances. Its effects are dual. On one hand there is supplication to God to relieve the stress. On the other hand there is the feeling of relief because the problem has been referred to a higher and stronger power.