Presented at a National Symposium on medical ethics held at the Bangladesh Institute of Advanced Management Dhaka on Saturday 5th April 2008 by Dr Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard), DrPH (Harvard) Professor of Epidemiology and Islamic Medicine University of Brunei Darussalam.
INTRODUCTION
Islam has a parsimonious and rigorously defined ethical theory of Islam based on the 5 purposes of the Law, maqasid al shariah. The five purposes are preservation of diin, life, progeny, intellect, and wealth. Any medical action must fulfill one of the above purposes if it is to be considered ethical.
The basic ethical principles of Islam relevant to medical practice derived from the 5 principles of the Law which are: intention, qasd; certainty, yaqeen; harm, dharar. The Islamic principles are wider in scope and deeper than the European principles.
THE ISLAMIC THEORY OF ETHICS DERIVED FROM THE PURPOSES OF THE LAW, MAQASID AL SHARIAH
Purpose 1: Protection of Diin: 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; pilgrimage, and hajj. A sick or a weak body can perform none of them properly. Balanced mental health is necessary for understanding ‘aqidat and avoiding false ideas that violate ‘aqidat.
Purpose 2: Protection of Life, hifdh al nafs: The primary purpose of medicine is to fulfill the second purpose of the shariah, the preservation of life. Medicine cannot prevent or postpone death since such matters are in the hands of Allah alone. It however tries to maintain a high quality of life until the appointed time of death arrives. Medicine contributes to the preservation and continuation of life by making sure that normal physiological functions are well maintained and causes of disease are removed or mitigated. Medical knowledge is used in the prevention of disease that impairs human health. Disease treatment and rehabilitation lead to better quality health.
Purpose 3: Protection of Progeny, hifdh al nasl
Medicine contributes to the fulfillment of this function by making sure that children are well cared so that they grow into healthy adults who can bear children. Treatment of infertility ensures successful child bearing. The care for the pregnant woman, prenatal medicine, and pediatric medicine all ensure that children are born and grow healthily. Intra-partum care, infant and child care ensure survival of healthy children.
Purpose 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.
Purpose 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 generally poor health are less productive than a healthy vibrant community. The principles of protection of life and protection of wealth may conflict in cases of terminal illness. Care for the terminally ill consumes a lot of resources that could have been used to treat other persons with treatable conditions. The question may be posed whether the effort to protect life is worth the cost. The issue of opportunity cost and equitable resource distribution also arises.
PRINCIPLES OF ETHICS DERIVED FROM THE PRINCIPLES OF FIQH, qawa’id al fiqh
Principle 1: The Principle of Intention, qa’idat al qasd
The Principle of intention comprises several sub principles. The sub principle in which 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 based on ‘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 in which, “means are judged with the same criteria as the intentions” implies that no useful medical purpose should be achieved by using immoral methods.
Principle 2: The Principle of Certainty, qaidat al yaqeen
Medical diagnosis cannot reach the legal standard of certainty, yaqeen. Treatment decisions are best on a balance of probabilities. Each diagnosis is treated as a working diagnosis that is changed and refined as new information emerges. This provides for stability and a situation of quasi-certainty without which practical procedures will be taken reluctantly and inefficiently. Existing assertions should continue in force until there is compelling evidence to change them. Established medical procedures and protocols are treated as customs or precedents. What has been accepted as customary over a long time is not considered harmful unless there is evidence to the contrary. All medical procedures are considered permissible unless there is evidence to prove their prohibition. Exceptions to this rule are conditions related to the sexual and reproductive functions. All matters related to the sexual function are presumed forbidden unless there is evidence to prove permissibility.
Principle 3: The Principle of Injury, qaidat al dharar
Medical intervention is justified on the basic principle that injury, if it occurs, should be relieved. An injury should not be relieved by a medical procedure that leads to an injury of the same magnitude as a side effect. In a situation in which the proposed medical intervention has side effects, we follow the principle that prevention of harm has priority over pursuit of a benefit of equal worth. If the benefit has far more importance and worth than the harm, then the pursuit of the benefit has priority. Physicians sometimes are confronted with medical interventions that are double edged; they have both prohibited and permitted effects. The guidance of the Law is that the prohibited has priority of recognition over the permitted if the two occur together and a choice has to be made. If confronted with 2 medical situations both of which are harmful and there is no way but to choose one of them, the lesser harm is committed. A lesser harm is committed in order to prevent a bigger harm. In the same way, medical interventions with public interest have priority over consideration of the individual interest. The individual may have to sustain harm in order to protect public interest. In the course of combating communicable diseases, the state cannot infringe the rights of the public unless there is 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.
Principle 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. 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 shariah rules and obligations. Committing the otherwise prohibited action should not extend beyond the limits needed to preserve the Purpose of the Law that is the basis for the legalization. Necessity, however, does not permanently abrogate the patient’s rights that must be restored or recompensed in due course; necessity only legalizes temporary violation of rights. The temporary legalization of prohibited medical action ends with the end of the necessity that justified it in the first place. This can be stated in an alternative way that ‘if if the obstacle ends, enforcement of the prohibited resumes’. It is illegal to get out of a difficulty by delegating someone else to undertake a harmful act.
Principle 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.
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© Professor Omar Hasan Kasule April 2008
© Professor Omar Hasan Kasule April 2008
