with moral issues in medicine increased in the recent past due to new medical technology and increase in moral violations
by medical practitioners
Law is comprehensive consisting of a combination of moral and positive laws. Ethico-legal issues in medicine are covered directly
by the Law. There is no need for developing a separate field for ethics.
European law denied moral considerations associated with ‘religion’ and became almost exclusively positive law
with no ‘religious’ prescriptions. It therefore encountered some difficulty in dealing with ethical issues in
modern medicine whose solution required moral considerations. The field of medical ethics has been growing rapidly to cover
this gap in the law. At the same time the law has started catching up by providing specific guidelines on ethical issues.
1976 Beauchamps and Childress wrote authoritatively about ethical theory and ethical principles. Other sources of ethical
guidelines are laws made by each country or guidelines issued by professional bodies such as the British Medical Association.
Additional ethico-legal guidelines are also found in the following international declarations: Declaration of Geneva, International
Code of Medical Ethics, Declaration of Tokyo, Declaration of Oslo, and Declaration of Helsinki.
2.0 ETHICAL THEORIES ACCORDING TO BEAUCHAMPS and CHILDRESS
is no one coherent European theory of ethics. Beauchamp and Childress listed six European ethical theories none of which can
on its own explain all ethical or moral dilemmas. These theories can be listed as the utilitarian consequence-based theory,
the Kantian obligation-based theory, the rights-based theory based on respect for human rights, the community-based theory,
the relation-based theory, and the case-based theory.
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.
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.
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. 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.
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.
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.
case-based theory is practical decision-making on each case as it arises. It does have fixed philosophical prior assumptions.
3.0 ETHICAL PRINCIPLES ACCORDING TO BEAUCHAMPS AND CHILDRESS
4 basic ethical principles according to Beauchamps and Childress (1994) are: autonomy, beneficence, non malefacence, and justice.
Principle of Autonomy is the power of the patient to decide on medical procedures.
Principle of Non-maleficence is avoiding causation of harm.
Principle of Beneficence is the providing benefits and balancing them against risks and costs.
principle of justice is distribution of benefits, costs, and risks fairly
4.0 THE ETHICAL THEORY BASED ON THE PURPOSES OF THE LAW, maqasid al shari’at
medical practice to be moral, it must fulfill and not violate the 5 general purposes of the Law: morality, life, progeny,
intellect, and property / resources.
of morality is the most important purpose. Medical practice should not violate moral or religious injunctions.
primary purpose of medicine is to fulfill the second purpose of the Law which is preservation of life. Medicine cannot prevent
or postpone death since such matters are in the hands of the Creator 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.
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, 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.
treatment plays a very important role in protection of the intellect. 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.
ensures the economic wellbeing and resources of a community. 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.
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. We shall discuss this matter in detail later.
5.0 ETHICAL PRINCIPLES BASED ON THE PRINCIPLES OF THE LAW, qawa’id al shari'at
are 5 legal principles that can guide the practice of medicine: intention, certainty, injury, hardship, and custom. The 4
ethical principles enunciated by Beauchamps can be shown by legal reasoning to be all encompassed in the principle of injury.
principle of intention comprises several sub principles. The first sub principle
that each action is judged by the intention behind it calls upon the physician to consult his inner conscience and make sure
that his actions, seen or not seen, are based on good intentions. The second sub-principle states that ‘what matters
is the intention and not the letter of the law’ and rejects the wrong use of data to justify wrong or immoral actions.
The third sub principle states that means are judged with the same criteria as the intentions implies that no useful medical
purpose should be achieved by using immoral methods.
principle of certainty is involved in several medical issues. Medical diagnosis
cannot reach the legal standard of absolute certainty. 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.
principle of injury has many applications in medicine since each medical intervention
is accompanied by some injury in the form of side effects. Medical intervention is justified on the basic principle is that
injury, if it occurs, should be relieved. An injury should not be relieved by a medical procedure that leads to an injury
of the same magnitude as a side effect. In a situation in which the proposed medical intervention has side effects, we follow
the principle that prevention of a harm has priority over pursuit of a benefit of equal worth. If the benefit has far more
importance and worth than the harm, then the pursuit of the benefit has priority. Physicians sometimes are confronted with
medical interventions that are double edged; they have both prohibited and permitted effects. The guidance of the Law is that
the prevention of 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 the physician has to listen to his conscience since no empirical methods can be used to resolve the dilemmas.
principle of hardship is used in difficult situations. 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 all rules and obligations.
The principle of custom or precedent provides stability
to medical practice. The standard of medical care is defined by custom. The basic principle is that custom or precedent has
legal force. Established medical procedures and protocols are treated as customs or precedents. They are considered permissible
unless there is evidence to prove their prohibition.