101218L - MAQASID AND QAWAID AS CORE VALUES IN MEDICAL PRACTICE

Presented at a seminar on 'Islamic Healthcare' held at the Faculty of Medicine International Islamic University Malaysia 18-19 December 2010 by Omar Hasan Kasule Sr.

1.0 INTRODUCTION

Islam has a parsimonious and rigorously defined ethical theory of Islam based on the 5 purposes of the Law, maqasid al shari’at. Any medical action must fulfill one of the above purposes if it is to be considered ethical. The principles of the Law, qawa’id al shari’at, are practical extensions and interpretations of the maqasid. The ethical theories and principles are derived from the basic law but the detailed applications require further ijtihad. Healthcare providers in their conduct and decision making must constantly be aware of the maqasid to practice medicine in an ethical and legal way accepted by the shari’at.

2.1 Protection of ddiin, hifdh al ddiin

Protection of diin 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, puasa; and pilgrimage, 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.

2.2 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.

2.3 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.

2.4 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.

  

2.5 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. Healthcare providers must also be careful not to waste resources in the hospital.

3.1 The principle of intention, qa’idat al qasd

The Principle of intention comprises several sub principles. The sub principle that each action is judged by the intention behind it calls upon the healthcare provider 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.

3.2 The principle of certainty, qaidat al yaqeen

Medical diagnosis and treatment must be based on certain evidence obtained from clinical examination and investigations. All medical procedures are considered permissible unless there is certain, yaqeen, evidence to prove their prohibition.

3.3 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. Healthcare providers 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.

3.4 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.

3.5 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.

101218L - CRITIQUE OF CONVENTIONAL MEDICAL ETHICS

Presented at a seminar on 'Islamic Healthcare' held at the Faculty of Medicine International Islamic University Malaysia 18-19 December 2010 by Dr Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Bioethics Faculty of Medicine King Fahad Medical City Riyadh <omarkasule@yahoo.com>

1.0 LAW AND ETHICS: AN OVERVIEW

1.1 Islamic Law is comprehensive. It is a combination of moral and positive laws. Secularized conventional law denies moral considerations associated with ‘religion’. Its failure to solve issues in modern medicine that required moral considerations led to the birth of the discipline of medical ethics. Muslims do not have a special discipline on medical ethics because medical ethical and moral issues are encompassed within Islamic Law.

1.2 Concern with moral issues in medicine increased in the recent past due to new medical technology and increase in moral violations by medical practitioners. Many international documents on ethics have been issued in the past quarter century: Declaration of Geneva, International Code of Medical Ethics, Declaration of Tokyo, Declaration of Oslo, and Declaration of Helsinki. Muslims did not need to publish any new declarations because principles of legal medicine are found within the Islamic Law. Islamic Law incorporates moral principles directly applicable to medicine.

1.3 Modes of ethical analysis: There are three conventional approaches to ethical analysis: normative (what ought to be done) or practical (what most people do), and non-normative (what is actually going on). The Islamic approach is to define what is immoral and automatically ban leaving the rest as allowable.

1.4 Inconsistency in conventional ethics: Conventional ethics has a problem dealing consistently with moral issues after removing religion from public life over the past 5 centuries of secularism. Morality became communal consensus about what is right and what is wrong. Thus ethics became relative and changeable with change of community values. Secular conventional law does not follow a consistent moral guideline. It does not automatically ban all what is immoral and does not automatically permit all what is moral. It therefore cannot give rise to a consistent ethical system. Morality in Islam is absolute and is of divine origin. The Law is the expression and practical manifestation of morality.  It automatically bans all immoral actions as haram and automatically permits all what is moral or is not specifically defined as haram.

1.6 The absolute and the relative in Islamic ethics: The Islamic approach to ethics is a mixture of the fixed absolute and the variable. The fixed and absolute sets parameters of what is moral. Within these parameters, consensus can be reached on specific moral issues. Islam considers medical ethics the same as ethics in other areas of life. There is no need for a special code for physicians. Islamic medical ethics is restating general ethical principles using medical terminology and with medical applications.

1.7 Derivation of Islamic ethics from the Law; The ethical theories and principles are derived from the basic law but the detailed applications require further ijtihad by physicians. Islam has a parsimonious and rigorously defined ethical theory of Islam based on the 5 purposes of the Law, maqasid al shari’at. The five purposes are preservation of ddiin, life, progeny, intellect, and wealth. Any medical action must fulfill one of the above purposes if it is to be considered ethical. The basic ethical principles of Islam relevant to medical practice are derived from the 5 principles of the Law are: intention, qasd; certainty, yaqeen; harm, dharar. The Islamic principles are wider in scope and deeper than the European principles.

2.0 ETHICAL THEORIES OF CONVENTIONAL ETHICS

2.1 Many ethical theories: According to Beauchamp and Childress there are eight conventional ethical theories. None of them can, on its own, explain all ethical or moral dilemmas. A good ethical theory must be clear, coherent, complete, comprehensive, simple, practicable, and able to explain and justify. None of these 8 theories has all these characteristics. In practice more than one theory may have to be combined to solve a specific ethical issue.

2.2 According to the utilitarian consequence-based theory, an act is judged as good or bad according to the balance of its good and bad consequences. Utilitarianism means attaining the greatest positive with the least negative. This theory has a problem in that it can permit acts that are clearly immoral on the basis of utility.

2.3 The obligation-based theory is based on Kantian philosophy. Immanuel Kant (1724-1804) argued that morality was based on pure reasoning. He rejected tradition, intuition, conscience, or emotions as sources of moral judgment. A morally valid reason justifies action. Acts are based on moral obligations. The problem with the Kantian theory is that it has no solution for conflicting obligations because it considers moral rules as absolute.

2.3 The rights-based theory is based on respect for human rights of property, life, liberty, and expression. The individual is considered to have a private area in which he is master of his own destiny. Rights may be absolute or relative. A positive right is one that has to be provided to the individual. A negative right is one that assures prevention of or protection from harm. There is a complex inter-relation between rights and obligations. Individual rights may conflict with communal rights. The problem of the rights-based theory is that emphasis on individual rights creates an adversarial atmosphere.

2.4 According to the community-based theory, ethical judgments are controlled by community values that include considerations of the common good, social goals, and tradition. This theory repudiates the rights-based theory that is based on individualism. The problem with this theory is that it is difficult to reach a consensus on what constitutes a community value in today’s complex and diverse society.

2.5 The relation-based theory gives emphasis to family relations and the special physician-patient relation. For example a moral judgment may be based on the consideration that nothing should be done to disrupt the normal functioning of the family unit. The problem of this theory is that it is difficult to deal with and analyze emotional and psychological factors that are involved in relationships.

2.6 The case-based theory is practical decision-making on each case as it arises. It does have fixed philosophical prior assumptions.

3.0 CONVENTIONAL ETHICAL PRINCIPLES

3.1 Ethical principles are axioms that simplify ethical reasoning. Conventional ethical guidelines do not have BACKUP explicit purposes such as are enunciated in the maqasid al shari’at.

3.2 There are 4 basic conventional ethical principles according to Beauchamp and Childress (1994) and these can be shown to correspond to some of the qawai’d al shari’at. The Principle of Autonomy is the power of the patient to decide on medical procedures. The Principle of Non-malefacence is avoiding causation of harm. The Principle of Beneficence is the providing benefits and balancing them against risks and costs. The principle of justice is distribution of benefits, costs, and risks fairly. Application of the above principles requires ethical rules. All these can be found within only one of the 5 principles of Islamic ethics: the principle of dharar.

3.3 The principle of autonomy states that the patient is the one to make decisions on the choice of treatment and the physician after being given full and relevant information. This requirement fulfils the principle of preventing harm because the patient is, of all those involved in the therapeutic scenario, is the most sincere regarding his self-interest in protecting his life.

3.4 The principles of beneficence and nonmalefacence directly relate to balancing 2 sub-principles of the principle of dharar which are benefit, maslahat, and harm, mafsdaat.

3.5 The principle of justice fulfils the requirements of the principle of dharar by ensuring that nobody should be harmed by unequal treatment or discrimination

101218L - CASES FOR DISCUSSION AT ISLAMIC ETHICO-LEGAL SESSION ISLAMIC HOSPITAL CONSORTIUM

Presented at a Workshop on Islamic Hospitals held at Kuantan Malayais on 18-19^th December 2010 by Professor Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard). Professor King Fahad Medical City Faculty of Medicine Professor of Epidemiology Universiti Malaya. EM omarkasule@yahoo.com. WEB: http://omarkasule.tripod.com.

GROUP #1 (CASES ON PRIVACY AND CONFIDENTIALITY)

Case #1: A patient with diastolic blood pressure of 120 mmHg failed to return to the Health Center for treatment. The nurse called the head of the village and asked him to convince the patient to come. In order to press on him the urgency of the matter, she had to explain all the details of the history and examination that had been carried out on the patient.

Case #2: A clerk in the records department casually mentioned impotence of a patient to his friends at the village restaurant. Word spread quickly around the village resulting in cancellation of the patient’s engagement. The fiancée sued in court and the patient committed suicide. The clerk felt no remorse. He argued that he was doing a public duty by stopping a potentially unhappy marriage.

Case #3: A neurologist informed his wife over dinner about an elderly school bus driver who had Parkinson disease and had to take an unusually high dose of medication to suppress the tremors. The medication made the patient sleepy all day. The wife asked for the name and realized that the patient was a driver for her school transport company who had been coming to work late in the past 2 weeks. She dismissed him the next morning.

GROUP #2 (CASES ON DISCLOSURE)

Case #4: Midwives refused to inform a mother and hid a congenitally malformed baby from her for a week. They gave the mothers various excuses for not showing her the baby. When the mother became very angry the pediatrician came to talk to her and told her that she had an abnormal baby. He said ‘in my experience children with this type of abnormality do not survive longer than a month’. When the patient asked for the cause of the abnormality the pediatrician replied ‘It is all your fault, you should not have become pregnant above the age of 40’. The mother broke down and cried. She left the hospital 2 hours later without being formally discharged.

Case #5: The manager of a national airline was worried about the erratic behavior and mistakes of one of the senior pilots. He asked around and found out the name and address of the pilot’s family doctor who was in private practice. He wrote to the private practitioner to provide records about treatment of the pilot for vision and psychological problems. He asked specifically for information on drug abuse. The private practitioner called and gave the information but told the manager that he could not put it down in writing since he had not discussed the matter with the patient. Two weeks later the private practitioner received an offer of a free ticket for himself and his wife to a holiday resort. The letter from the airline public relations office said that the airline was carrying out a promotion and that names of beneficiaries had been selected at random from the telephone directory. The doctor subsequently went on the trip with his wife.

Case #6: A medical researcher stationed at the hospital used to take an aliquot from every blood specimen to test for HBV. The hospital authorities knew what he was doing but the patients were not informed because he did not record names of patients. One day out of curiosity he tested a specimen for HIV and found it positive. He was confused what to do regarding disclosure. He called a meeting of the senior staff in the hospital to discuss the matter. He also included a respected lawyer from the town to provide a non-medical perspective.

Case #7: A community pediatrician had reported abuse of a couple’s first child to the authorities. The authorities called in the parents to discuss the matter. The abusing father was so angry that he divorced his wife for giving information to the pediatrician. He later took the wife back under the rujuk provisions of the Law. At the next visit the pediatrician noted signs of child abuse and asked the mother. The mother confirmed the abuse but asked the pediatrician not to follow up the matter for the sake of her marriage and family. The pediatrician this time did not report to the authorities.

Case #8: A midwife who had contracted HIV due to transfusion hid her status for 5 years. She was very meticulous during deliveries observing all precautions and during that time no patient was reported to have been infected. After a family quarrel her husband revealed her status to the newspaper. The editor failed to interview her before publication of the report. The midwife refused a request by the head of obstetrics to have an HIV test. The hospital suspended her and charged her for criminal negligence in the high court.

GROUP #3 (CASES ON CONSENT TO TREATMENT)

Case #9: A bed-ridden patient with limited movements and sensation communicated by sign language and limited speech. She could recognize letters and could write sentences by nodding when the right letter was touched. She indicated that she did not want physiotherapy, wanted to divorce her spouse, and wanted to give the family home to the kind doctor taking care of her. She wanted to disinherit her sons for not sitting around her bed and caring for her daily. She wanted to return to her home and leave the nursing home.

Case #10: A patient with a benign prostatic enlargement and mild urinary retention asked the urologist for prostatectomy. The urologist refused after examination revealed no complications and a normal PSA level. Because there was only one urologist in the government hospital, the patient sued the hospital in the High Court to force them to carry out the operation. Due to delays in scheduling a hearing the patient went overseas and had the operation done. Histological examination showed low grade prostate carcinoma confined within the prostatic capsule.

Case #11: A patient was brought to the emergency room by the police after attempting to kill himself by hanging. He was unconscious when first brought in and had a signed suicide note in his shirt pocket saying that he wanted to die. The doctors ignored the note and started resuscitation measures. The patient became conscious after 30 minutes and protested at the medical treatment arguing that he wanted to die. The doctor was thinking of stopping resuscitation measures when the patient’s father and wife arrived and instructed the doctor to continue resuscitation.

GROUP #4 (CASES ON REFUSAL OF TREATMENT)

Case #12: A 40-year old theater nurse refused to accept the diagnosis of breast cancer and refused surgery. The tumor grew larger, broke through the skin and became foul smelling because of bacterial infection. The hospital director put her on unpaid leave.

Case #13: A 40-year old policeman refused surgery to drain a pyomyositis abscess. He still refused surgery after the abscess burst spontaneously. The surgeons sedated him and carried out the surgery without his consent.

Case #14: A 30-year old soldier with a history of schizophrenia refused a chest X-ray for a severe cough lasting 2 months. His commanding officer authorized using force to take the X-ray and to treat him accordingly. The army doctors were not sure what to do but being army officers they obeyed orders of the commanding officer.

Case #15: A 42-year old actress pregnant for the first time refused an elective caesarean section. She continued to refuse the procedure when labor became obstructed and signs of fetal distress appeared. The obstetrician went ahead to operate on the basis of consent by the husband. The baby was delivered alive and well.

Case #16: A 14-year old patient refused admission because he hated the physicians on the pediatric ward.  The father agreed with the patient but the mother disagreed. Both parents agreed with the patient’s refusal of any blood transfusion which the doctors considered necessary since the hemoglobin level had fallen to a dangerous level.

Case #17: A 60-year old retired nurse refused HRT after a diagnosis of osteoporosis was made. She argued that HRT was anticipating and contradicting Allah’s pre-determination, takdir.

GROUP #5 (CASES ON NEGLIGENCE & MALPRACTICE 1)

Case #18: A patient with no obvious injury after a minor accident was discharged without X-ray investigations. He developed back problems 3 months later leading to leg paralysis. He sued the hospital for negligence.

Case #19: A 45-year old mother of 5 grown up children had hysterectomy because of prolonged, heavy, and irregular menstruation. The surgeon took care to preserve the ovaries and therefore saw no need to put her on HRT. Three years later she had a hip fracture due to osteoporosis treated by hip replacement and she was started on HRT. Six months later she developed pain in the right groin and investigations revealed cancer of the ovary which had to be removed. Her daughter who was a nurse in the hospital argued her to sue the hospital for malpractice but she herself was not very sure of what had gone wrong.

Case #20: An aspiring actor was advised by her media consultants to change her facial features in order to succeed in landing major and lucrative acting roles. She went to a doctor who advertised his cosmetic surgery services on the television and women’s magazines. She signed a consent form for surgery but did not see a notation in the footnotes that the operation was entirely at her own risk. Six months later and after a series of operations she was angry. Her face was asymmetric and her eye lids drooped. She asked for his license as a plastic surgeon. He told her he was a general surgeon who had interest in plastic or cosmetic surgery. With her career ruined she decided to take him to court.

Case #21: A patient with epilepsy well controlled on drugs for the past 10 years, experienced a minor epileptic seizure. His physician increased the drug dosage and told him all would be well and that he could go back and resume driving the school bus. The patient asked for an MC to explain his day’s absence to the manager of the school bus company.  The next morning the patient crushed the bus into a wall as he was driving it out of the garage. He explained that he felt sleepy at the time of the accident.

GROUP #6 (CASES ON LIFE SUPPORT IN TERMINAL ILLNESS)

Case #22: A patient with brain stem death is kept on artificial life support at the insistence of the family because announcing the death immediately will have an adverse effect on the values of the family business on the stock exchange. 

Case #23: The family took an unconscious man to hospital reluctantly because they believed he was dead. He was admitted to the ICU and was put on artificial life support. For a period of 4 weeks the family insisted on withdrawal of life support because they would be ruined financially by the high ICU costs. The physicians refused withdrawal of life support because his brain stem was functional. The patient woke up in the 5^th week.

Case #24: A patient is brought to the emergency room after a car accident. The examining doctor found some signs of life but refused to institute life support because he was convinced it was futile. The patient died a few minutes later. The accompanying family members were furious and accused the doctor of negligence. They threatened to sue. The doctor advised them to wait for results of the postmortem examination that would show that death was inevitable. They refused to have any postmortem because it was against their religious beliefs.

Case #25: A patient admitted to the ICU after a car accident was confirmed by 3 specialist surgeons to be in a persistent vegetative state. The doctors wanted to discontinue life support but the family refused because there were signs of life like reflex flexion of joints and blinking of the eyes. The hospital decided to seek a court injunction after keeping the patient in the ICU for 6 months without any obvious improvement.

GROUP #7 (CASES ON REPRODUCTIVE ISSUES)

Case #26: A mentally retarded sexually active 14-year old teenager was taken to the family planning clinic to receive contraceptives without the knowledge of her parents. Due to irregular use of the pills she became pregnant and her aunt took her overseas for an abortion. On return she advised her parents to take her for sterilization. The parents preferred hysterectomy because in her retarded condition she could not maintain menstrual hygiene. The family gynecologist preferred depo provera.

Case #27: A couple married for 10 years without a child decided to have IVF. Before the procedure was completed, the husband died. The wife insisted on using the stored semen of her dead husband. The relatives of the husband objected. The first wife who had been divorced 15 years earlier with one girl also asked for the semen for an IVF procedure that she hoped would enable her have another baby to act as a bone marrow donor for her daughter who had leukemia and had failed to find a matching donor.

Case #28: A 14-year old sexually active girl was treated at the outpatient clinic for sexually transmitted disease. The doctor advised her on the use of condoms to prevent disease. She asked the doctor to keep the matter a secret even from her parents. She became extremely promiscuous after that until the whole village knew about her behavior. The news deeply embarrassed the parents. They learned from a distant relative who worked at the outpatient clinic that she had been advised about the use of condoms by the doctor and that she had obtained the condoms from the family planning clinic.

Case #29: A married woman with 6 young children came to the hospital asking for an abortion because she had become pregnant while her husband was half-way through a 4-year prison sentence for violent behavior. She was afraid for her life. She had just discovered a secret about her husband from a police officer that the husband has killed his first wife 20 years earlier because of a jealous rage and had escaped the gallows on a legal technicality because of police incompetence in investigating the case.

Case #30: A 40-year old housewife with 8 living children is brought reluctantly to the contraceptive clinic by the husband. The husband asks for tubal ligation because he cannot afford to look after more children. The wife insists that Allah will provide for all the children irrespective of the husband’s financial situation.

GROUP #8 (CASES ON ORGAN DONATION)

Case #31: A leading politician with end-stage kidney failure presents at the transplant clinic with a distant cousin who is an impoverished farmer from the countryside. He says that the relative has agreed to be a live donor for him. The cousin states that he will donate the kidney but on further questioning he does not seem to know what a kidney is and where it is found in the body. The transplant team seemed reluctant to go ahead with the procedure. The politician gets angry and gets them reprimanded by the Minister of Health. They resign en masse and sue the politician and the Ministry of Health for unjustified interference in their work.

Case #32: A doctor in end-stage renal failure brings over 50 relatives for blood group testing and tissue matching for kidney for live kidney donation. Only one relative was a suitable donor on the basis of tissue and blood group matching but he refused to be a donor unless a new house was built for him and he was given a big amount of money. One other relative was not a tissue match but matched for blood group and was willing to donate the kidney for free.

Case #33: A patient of terminal renal disease received a cadaveric transplant and recovered well. Two years after the operation he received a note from a stranger demanding payment of a large sum of money. The stranger claimed to be the son of the kidney donor who had died during surgery for intestinal obstruction. The stranger claimed that a source within the hospital had informed him that the deceased’s kidney has been removed without the knowledge and permission of the family.

Case #34: A father of a child with end-stage renal disease got tired of taking her for dialysis every week. He had failed to find a live or a cadaveric donor for her in his country. He considered traveling to a nearby country where kidneys could be bought but he was not sure. He also considered marrying a young wife (his first wife had died) and hopefully produce a child who could be a donor. 

GROUP #9 (CASES ON DRUG ABUSE AND SUICIDE)

Case #35: A patient, whose engagement had been called off in the week that he failed his university entry examinations, started smoking, drinking alcohol, and using illicit drugs to forget his problems but to no avail. He was admitted to the medical ward after suffering a nervous breakdown. He was violent and abusive on the ward and refused to take his medication. Two weeks from his admission he left the ward without telling anyone and went and killed his former fiancée at her home. He later became very agitated and depressed and within 10 hours he also committed suicide. His parents and the parents of his ex-fiancee jointly sued the hospital.

Case #36: The patient was a brooding type who was always sad. He had a mental break down when his wife had a spontaneous abortion of a 3-month pregnancy. He was taken to the hospital emergency room. The attending physician finding nothing physically wrong with him, decided to discharge him. The physician ignored the repeated talk of the patient about following his dead baby into the grave and just gave him valium and sent him home. When the effect of valium wore off at home he became agitated. His wife found him 10 minutes later lying unconscious on the bed with a half-empty bottle of detergent next to him. She called an ambulance that arrived in record time. By the time he was seen by the physician in the emergency room, he had recovered some consciousness and could talk. He told the physician that he wanted to die. He categorically refused to consent to the procedure of gastric lavage to remove the detergent from his stomach. A psychiatrist called to assess his mental competence concluded that he was competent to make decisions.

GROUP #10 (CASES ON DOCTOR ETIQUETTE, adab al tabiib)

Case #37: A physician prescribed a new unlicensed drug donated to him by a pharmaceutical company. The physician had shares in the company. He had no previous personal knowledge of the drug. The patient developed an immediate allergic reaction. The physician blamed the nurse for not asking about drug allergies before injecting the drug.

Case #38: A 60-year old surgeon was known by everybody in the hospital to cause pain while examining patients without prior explanation and consent. He used to make lewd jokes about female patients. He discussed diagnoses with his drinking partners and details of many patients were known in the community. A junior doctor who complained to the hospital director was told to keep quiet. Nobody else dared to complain about him because of his seniority.

Case #39: A well-known businessman was diagnosed with drug-resistant tuberculosis. He refused admission to the TB ward because of his social position. He contacted the hospital manager who was his golf partner to pressure the junior doctor to admit him to a room on a normal ward. When the junior doctor refused, he was transferred to another department and the admission went ahead.

GROUP #11 (CASES ON RESOURCES)

Case #40: A 65-year old man whose brother had just died from coronary heart disease walked into the health center and asked for examination because he was afraid that his heart may also have problems. The triage nurse asked him if he had any specific complaints. He replied that he has none and that he was in perfect health. The nurse rebuked him for wasting her time. ‘Don’t you the see line of 120 really ill people waiting to see a doctor? How can we waste time in someone healthy like you?’.  The man left but was admitted to the ICU 5 days later with myocardial infarction and he died after 2 days.

Case #41: The ICU staff were in a dilemma because 2 patients presented at the same time and they had only one free bed. The first patient was 90 years old and has been admitted three times before with myocardial infarction. His sons forced him to come to hospital; he had expressed preference to stay and die at home in peace. The second patient was a 30-year neurosurgeon. He was the only one in the whole country. He had been involved in a serious car accident and was in coma.

Case #42: A 37-year old mother, who had just had a normal delivery with considerable blood loss, protested at being discharged the next day. She needed rest and could not get that at home where she had 5 children to look after. The midwives told her they needed the bed for other patients. She was readmitted the next day with fatal postnatal hemorrhage.

GROUP #12 (PHYSICIANS WITH DUAL OBLIGATIONS)

Case #43: A worker sustained severe injury while at work. Under pressure from the management, a company physician refused to certify disability qualifying the worker for a hefty compensation. The worker sued the employer. While the case is still in court the worker died and the physician refused to certify that gangrene of the injured hand contributed to his death.

Case #44: A national football team physician examined a player and found that he had a chronic shoulder dislocation and advised that he should not play again until it was treated. The player protested because he had always played with that condition since he was young. The team manager threatened to dismiss the physician if he did not certify the player as fit to play because that star player was the only hope of the team to win in an international match the next day.

GROUP #13 (POSTMORTEM)

Case #45: A child’s asthma progressed to respiratory failure and death. The father refused tom give up his heavy smoking and the mother refused to get rid of their cats to which the child is allergic. Hospital authorities request for a postmortem examination to establish the cause of death for fear that they may be charged unfairly for negligence in the death of the child. The social workers also request a postmortem because they suspect that parental negligence contributed to the death. The family rejects postmortem claiming the child died from a curse and not disease.

Case #46: A police officer died a few minutes after admission from what was suspected injuries sustained in the course of his duty. The police department insisted on a postmortem to determine the cause of death in order to make decisions about compensation. The family was divided. Some were opposed to postmortem and others wanted to go ahead.

CASE GROUP #14 (COSMETIC and RECONSTRUCTIVE SURGERY

Case #47: A child recovered from third degree burns with severe scarification and facial distortion. He was referred to a plastic surgeon for reconstruction. The father objected saying that it was Allah’s will and should be left as is.

Case #48: A child was born with polydactyl and the parents were not sure about corrective surgery to remove the extra digits

Case #49:A teenager felt bad about her distorted teeth and urged her parents to take her for orthodontic corrective surgery

Case #50: a teenager had a big mole on her face and she felt that nobody would marry her because she did not look attractive.

Case #51: A married woman fearing that she was no longer attractive wanted to undergo plastic surgery on the nose and to bleach her skin. She feared that her husband would look for another wife.

Case #52: A champion Qur’an recite was advised to have an operation to make his nose smaller for a better sound

Case #53: a woman raped when young was advised to undergo hymenal repair before marriage

CASE GROUP #15 (PRIVATE PRACTICE)

Case #54: a young doctor heavily indebted because of payment for cancer treatment for his father decided to open a private clinic near the public hospital where he worked. He started advising his patients to see him at the private clinic in the evening where he could give them better care.

Case #55: a specialist doctor with a private surgical clinic reached an arrangement with the medical officer at a public hospital to refer patients in return for a payment of 10% of the patient fee.

Case #56: Three Muslim friends graduated at the same time from the medical school set up a successful private practice. One of them decided to split from the group and set up a clinic next door.

Case #57: a specialist surgeon working in a public hospital started referring all patients he saw to get x-ray examination from a radiology center owned by his wife. The wife charged the lowest fees of all the radiologists in town.

CASE GROUP #16: (DOCTOR-PATIENT RELATIONSHIP)

Case #58: A specialist physician made a phone prescription of an alpha blocker for his uncle after listening to his symptoms but had never examined him before. The uncle being a pharmacist went on to fulfill the prescription.

 

Case #59: a medical officer at a social dinner advised his regular patient to double the dose of the drug he had prescribed because the patient complained of lack of improvement.

Case #60: a specialist made an internal examination of the matron without a chaperone

urging that she did not want the young nurses to see her awrat.

CASE #17: FAIR CHARGES IN PRIVATE PRACTICE

Case #61: a Muslim private practitioner charged higher prices for non-Muslim patients

Case #62: A Muslim private practitioner had a graduated fee schedule charging rich patients higher than the poor ones.

Case #63: a practitioner who was the only doctor in the village charged prices that villagers considered exhorbitant but paid because they had no alternative. He defended himself saying that he had to pay back his medical school loans.

Case #64: One private practitioner in the village charged very low fees compared to the other 4 practitioners who said they could not charge so low because their income would fall below their expenses and they would be ruined.  

GROUP #5 (CASES ON NEGLIGENCE and MALPRACTICE 2)

Case #65: a medical officer pierced the ear drum of a patient who protested loudly about the pain and eventually became deaf in that ear. A consultant who was standing by did not say anything. The patient sued both the medical officer and the consultant.

Case #66: a medical officer by chance at the site of an accident tried resuscitation and failed. He was sued by the victim’s family.

Case #67: A surgeon carried out an operation using a new technic unknown in the hospital but the patient recovered well with no complications.

Case #68: A consultant at a dinner without seriously questioning the patient advised doubling the anti-coagulant dose. The patient died of hemorrhage the next day.

Case #69: A physician forgot to prescribe an antibiotic for a patient with acute lobar pneumonia but the patient recovered uneventfully after one week. 

100531P - DEFINITION OF LEGAL DEATH AS BRAIN DEATH

Background material by Professor Omar Hasan Kasule Sr. for Year 4 session at the Faculty of Medicine King Fahd Medical City on 31^st May 2010

1.0 TRADITIONAL CRITERIA OF DEATH

1.1 NEED FOR CRITERIA

In general death is defined as irreversible loss of the integrated functioning of the organism as a whole. For most of human history, death has been defined in a more subjective way with little attention being given to objective criteria. There were not legal or practical necessities for early diagnosis of certification of death. They had the luxury of waiting until all signs of life disappeared before pronouncing death. The earliest criteria of death that humans used were respiratory arrest. The Qur'an and sunnat describe death mostly in terms of respiratory failure. Later circulatory/cardiac arrest as absence of a heart beat or a pulse was also used. Unconsciousness was another criterion used and it related to the brain. Technological developments in intensive care units have blurred the demarcation between life and death that was taken for granted before. Many unconscious people with no cardiac or respiratory functions can be kept apparently alive on artificial life support. The increase in transplantation has given momentum to the need to develop new criteria for death. This is because organs have to be harvested quite early in the death process to prevent them from further degeneration.

1.2 RESPIRATORY FAILURE

The main purpose of the respiratory system is to deliver oxygen to the tissues. Oxygen is necessary for tissue metabolism. Tissues cannot survive prolonged hypoxia. Thus respiratory failure is followed by death of tissues due to oxygen deprivation. Respiratory failure is defined as type 1 failure which is hypoxemia (partial pressure of oxygen <8 kpa) due to decreased pulmonary perfusion or type II failure which is hypoxemia with hypercapnia (partial pressure of carbon dioxide >6.5 kpa) due to failure of breathing. 

1.3 CARDIO-VASCULAR  FAILURE

In cardio-vascular failure, tissues are not perfused sufficiently with blood that carries food and oxygen as well as takes away tissue metabolic waste. The brain is more sensitive to circulatory failure than other tissues of the body. Cardiovascular failure has 2 components: cardiac failure and circulatory failure. Cardiac failure is cardiac output inadequate for tissue perfusion due to failure of pumping blood by the heart. Cardiac failure also manifests as blood congestion in the pulmonary and the systemic circulations. Cardiac failure is caused by a variety of diseases some localized and others systemic. Circulatory failure, failure of adequate tissue perfusion and oxygen delivery, is caused by hypovolemia, cardiac failure, obstruction to blood flow, and neurogenic due to brain stem and spinal injury, anaphylactic, and sepsis. Its common manifestation is hypotension. 

1.4 NEUROLOGICAL FAILURE: IMPAIRED CONSCIOUSNESS (COMA)

When blood circulation to the brain stops or is decreased, brain function is impaired and a common manifestation of this is persistent impairment of consciousness called coma. Coma indicates severe disease of the brain stem that impairs arousal mechanisms that keep us awake and conscious. The systemic causes of coma are cerebral hypoxia due to respiratory failure, cerebral ischemia due to cardiac failure or circulatory failure, and various metabolic derangements. Coma can be caused by conditions of the brain which could be traumatic injury, hemorrhage, ischemia, and infections. The extent of impairment of consciousness is measured using the Glasgow scale. Scores are given for various abilities in opening the eyes, motor response, and verbal response. Adding up these scores gives the coma score. 

2.0 BRAIN DEATH

2.1 SIGNIFICANCE OF BRAIN DEATH AS A CRITERION OF DEATH

Brain death is a form of biological death but we will discuss it here separate from other forms of biological death because of its importance. We need to establish a point of no return as irreversible loss of function because death is a process. The heart for example could stop for a short time and be revived later. Brain death seems to be the point of no return and it occurs before any of the other classical signs of death. Once the point of no return is reached, all the other signs will occur in due course. This point of no return is when the organism can no longer function as a whole because some parts have died.

In 1968 the Harvard criteria for a permanently non-functioning brain were published. These criteria were based on irreversible loss of function of the whole brain. The brain is very sensitive to injury and it has no potential for recovery or replacement after severe injury. Irreversible death of the brain will in time result in the death of all other organs because the brain is the command, coordination, and communication (C-C-C) center of the bodily functions. Without a functioning brain all bodily functions will in time disintegrate. Death of the brain manifests as loss of consciousness and all intellectual functions (cognition, memory, thought, and sensory perception) as well as loss of vital physiological functions like breathing and blood circulation. The dilemma of modern medical technology is that it can ‘take over’ the C-C-C functions of the brain by continuing bodily functions after death of the brain. This gives rise to many ethico-legal issues the central one being the contrast between ‘supporting life’ versus ‘a dead corpse with a beating heart’.

2.2 CONCERNS ABOUT ACCEPTING BRAIN DEATH

2.2.1 THE CHICKEN-AND-EGG DILEMMA: When the brain dies, the rest of body functions will disintegrate and cardio-respiratory failure will inevitably occur unless there is technological intervention. On the other hand cardio-respiratory failure causes brain death because of nutrient and oxygen deprivation. Cardio-respiratory failure need not be complete before leading to brain death. The brain is more sensitive to oxygen and nutrient deprivation than any other organ of the body. It will therefore die if the cardio-respiratory system is working sub-optimally. There is therefore a vicious cycle involving brain death and cardio-respiratory failure that may cast doubt about brain death as the first criterion of death but does not cast doubt on it as a definitive criterion of death. Brain death is therefore closely associated with traditional definition of clinical death by cardio-respiratory criteria that are the underlying cause of clinical death that had been used traditionally as criteria of death. In this sense it is not something new but is a refining of what has been used for a long time a definitive indicator of death.

2.2.2 PRESSURE TO HARVEST ORGANS: It seems that the motivation to use brain death as criterion of death was motivated by the need to have a very early declaration of death so that organs can be harvested before they deteriorate further.

2.2.3 OTHER FUNCTIONS OF THE BRAIN: We may speculate that it is possible that death of the brain as measured using available technology today misses out on other unknown functions of the brain that may continue after its ‘perceived’ physical death.

3.0 BRAIN STEM DEATH AS DEFINITION OF DEATH

3.1 BRAIN STEM DEATH IS IN ESSENCE WHOLE BRAIN DEATH: Whole brain death is cessation of function in all parts of the brain: the cerebral cortex, the brain stem, and the cerebellum. Death of the cerebral cortex means cessation of intellectual functions and the coordination of bodily activities. Death of the brain stem means cessation of the vital cardio-respiratory functions. Thus whole brain death is irreversible loss of bodily function. Whole brain death in effect means death of the brainstem because when the brain stem is dead the cerebral cortex cannot function since it depends on the brain stem. Brain death also causes irreversible loss of consciousness. Brain stem death causes respiratory failure first followed by cardiac failure.

3.2 THE BRAIN STEM: STRUCTURE AND FUNCTION: The brain stem consists of the midbrain (mesencephalon), the pons, and the medulla. It also contains the vasomotor centers that control cardio-respiratory functions, the ascending reticular activating system that maintains alertness (consciousness). Neurons to and from the cerebral cortex pass through the brain stem.  Thus any damage to the brain stem has far-reaching impact on overall physiological integrity of the organism.

3.3 CAUSES BRAIN STEM DEATH: Brain stem death caused by direct cranial trauma and cardiopulmonary arrest. The brain dies because it can no longer receive nutrients and oxygen conveyed by the blood.

3.4 BRAIN DEATH IS LIKE DECAPITATION: Dr Ali al Bar has a very graphic definition of brain stem death when he says it is the equivalent of decapitation. There may be some movements of limbs and the trunk after decapitation but these will cease soon.

4.0 HIGHER BRAIN DEATH AS DEFINITION OF DEATH

The cerebral cortex is the seat of intellect, memory, thought, feelings, and all what distinguishes a human. Irreversible loss of function in the cerebral cortex leads to loss of some these higher functions in the human in addition to functions such as voluntary movement. However a lot of autonomic functions that do not require voluntary control by the cerebral cortex remain intact because they are controlled by the brain stem. Thus a person who is in an irreversible state of unconsciousness, referred to as persistent vegetative state, can have a functioning cardiac and respiratory systems for a time. These functions however cannot last forever and they will cease unless some form of artificial life support is instituted. With life support such a person can be kept ‘alive’ for years and decades. Death usually occurs because of another cause like infection.

5.0 DIAGNOSIS OF BRAIN DEATH

5.1 OVERVIEW

Brain death is quite an early event in the death process. It was first proposed as a criterion for death by an adhoc committee of the Harvard Faculty that redefined death as brain death in 1968. Brain death was defined in 1968 by a publication ‘A Definition of Irreversible Coma’ in the Journal of the American Medical Association by the Ad Hoc Committee of the Harvard Medical School. The criteria for brain-death syndrome were given as: apnoeic coma with no evidence of brain stem or spinal reflexes and a flat electroencephalogram over a period of 24 hours. The report implied that death was brain death and recommended withdrawal of life support. In 1973 brain stem death was identified as the point of no return.

5.2 CLINICAL DIAGNOSIS OF BRAIN STEM DEATH

5.2.1 CONDITIONS TO BE EXCLUDED BEFORE TESTING FOR BRAIN STEM DEATH: Coma or loss of consciousness is first ascertained. Then causes of coma due to reversible brain stem injury are excluded. These include hypothermia (rectal temperature below 35 degrees centigrade), depressant drugs (narcotics, hypnotics, and tranqillizers), metabolic derangements (serum electrolytes, acid-base balance, disorders of glucose metabolism, and endocrine disoders), and drugs that block respiratory muscles.  Diagnosis of brain stem death will also require identification of a probable cause of the brain death.

5.2.2 CLINICAL TESTS FOR BRAIN DEATH: Clinically brain death is indicated by: absence of pupillary reflexes (constriction of pupils when light is shorn in them), fixedly-dilated pupils, absence of the corneal reflex (blinking when cornea is stimulated), absence of eye movements, absence of the orbicularis oculi reflex, absence of the vestibule-ocular reflex which is no eye movement when the external auditory meatus if flushed with 20 ml of ice cold water, no motor response to stimulation in the area of cranial nerve distribution such as absence of grimacing on applying firm pressure above the eye socket, absence of spontaneous respirations (Apnea is also confirmed by first making the patient breathe oxygen and then disconnecting the respirator long enough for carbon dioxide to accumulate in the lungs to trigger spontaneous breathing), absence of cephalic reflexes, absence of motor response to pain, absence of the cough reflex and absence of the gag reflex (coughing or gagging when a catheter is passed down the airway).

5.2.3 LABORATORY TESTS FOR BRAIN STEM DEATH: These clinical criteria are considered less accurate and have to be confirmed by laboratory measurements. They also are sometimes too late for purposes of declaring death to enable harvesting organs for transplantation. The above tests for brain death may have to be repeated several times at certain time intervals to make sure. Laboratory assessment are considered confirmatory and include: electrocorticogram measurements, electo-retinography, cerebral blood gas analysis, cerebral angiography to show cerebral circulatory arrest, retinal fluoroscopy, assessment of brain stem auditory responses

5.2.4 DIAGNOSIS OF THE PERSISTENT VEGETATIVE STATE (PVS): PVS is a state of higher brain death with lack of intellectual, emotional, memory, and other functions associated with a functioning cerebral cortex. Patients in PVS have a flat EEG of the cerebrum. They are not aware of who they are and where they are. They carry out movements but these are purposeless and are not coordinated. They have no sensory or language functions. They retain automatic cranial and spinal reflex response on stimulation. They can also produce meaningless sounds. Because of intact brain stem and hypothalamic function, they retain autonomic functions of swallowing, coughing, gagging, sucking, and gastro-intestinal movements. They can swallow food and drink on their own or assisted by means of nasogastric tubes. Patients can survive in the vegetative state for up to 30 years.

5.2.5 DIAGNOSIS OF ‘COMA VIGILANTE’ OR ‘LOCKED IN SYNDROME’: Care must be taken to distinguish PVS from the locked in syndrome. In the locked in syndrome the cerebral cortex is intact as indicated by EEG measurements. The patient is aware of himself and his surroundings. He however has lost the ability to make any voluntary movements. The only movement that is usually preserved in movement of the eyes up and down. They can develop some communication using eye movements.

6.0 CONCLUSION: WHAT IS ABOUT LEGAL DEATH?

6.1 After reviewing the various definitions of death, we need to address the legal definition of death. This is necessary because when a person dies, there are legal consequences involving burial, marriage, inheritance, and legal responsibilities. Legally several conventions are adopted by various countries and communities. These conventions change from time to time depending on the level of technological development and the underlying societal values.

6.2 The shari’at definition of death is guided by the fiqh concept of custom or precedent, ‘aadat. Thus the shariat definition can change from time to time and also from place to place depending on the level of technological development. Definition of death for the lost person, hukm al mafquud, can rely on the average expected life expectancy that varies by place, ethnicity, and socio-economic status. Cardio-respiratory failure used to be the traditionally accepted definition of death. Since the invention of lifr support technology, a consensus is developing to use whole brain death (in essence brain stem death) as a necessary and sufficient criterion of death. Brain stem death has the same effect as complete decapitation. Just as life support measures are useless for a decapitared person, they are useless for a person with brain stem death. There is no consensus that cerebral death (higher brain death) with a functioning brain stem is an acceotable definition of legal death. In the absence of time and financial pressures, the traditional cardio-respiratory criteria of death remain operational.