0707-Fiqh Tibbi: Ethico-Legal Guidelines for Students in Clinical Training

Lecture by Professor Omar Hasan Kasule Sr. for students of the Health Sciences Campus UIA Kuantan on 14th July 2007.


The presentation starts by presenting the ethico-legal basis of medical practice that is inn the form of maqasid al shari’at and qawa’id al shari’at.


1.0 PURPOSES OF THE LAW, maqasid al shari’at, IN MEDICINE

1.1 PROTECTION OF DDIIN, hifdh al ddiin

Protection of ddiin is essentially involves ‘ibadat in the wide sense that every human endeavor is a form of ‘ibadat. Thus medical treatment makes a direct contribution to ‘ibadat by protecting and promoting good health so that the worshipper will have the energy to undertake all the responsibilities of ‘ibadat. 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.


1.2 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.


1.3 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.


1.4  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.


1.5 PROTECTION OF WEALTH, hifdh al mal

The wealth of any community depends on the productive activities of its healthy citizens. Medicine contributes to wealth generation by prevention of disease, promotion of health, and treatment of any diseases and their sequelae. Communities with general poor health are less productive than a healthy vibrant community. The principles of protection of life and protection of wealth may conflict in cases of terminal illness. Care for the terminally ill consumes a lot of resources that could have been used to treat other persons with treatable conditions. The question may be posed whether the effort to protect life is worth the cost. The issue of opportunity cost and equitable resource distribution also arises.



2.1 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 physician to consult his inner conscience and make sure that his actions, seen or not seen, are based on good intentions. The sub principle ‘what matters is the intention and not the letter of the law’ rejects the wrong use of data to justify wrong or immoral actions. The sub principle that means are judged with the same criteria as the intentions implies that no useful medical purpose should be achieved by using immoral methods.


2.2 THE PRINCIPLE OF CERTAINTY, qaidat al yaqeen

Medical diagnosis does cannot reach the legal standard of yaqeen. Treatment decisions are best on a balance of probabilities. Each diagnosis is treated as a working diagnosis that is changed and refined as new information emerges. 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. 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.


2.3 THE PRINCIPLE OF INJURY, qaidat al dharar

Medical intervention is justified on the basic principle is that injury, if it occurs, should be relieved. An injury should not be relieved by a medical procedure that leads to an injury of the same magnitude as a side effect. In a situation in which the proposed medical intervention has side effects, we follow the principle that prevention of a harm has priority over pursuit of a benefit of equal worth. If the benefit has far more importance and worth than the harm, then the pursuit of the benefit has priority. Physicians sometimes are confronted with medical interventions that are double edged; they have both prohibited and permitted effects. The guidance of the Law is that the prohibited has priority of recognition over the permitted if the two occur together and a choice has to be made. If confronted with 2 medical situations both of which are harmful and there is no way but to choose one of them, the lesser harm is committed. A lesser harm is committed in order to prevent a bigger harm. In the same way medical interventions that in the public interest have priority over consideration of the individual interest. The individual may have to sustain a harm in order to protect public interest. In the course of combating communicable diseases, the state cannot infringe the rights of the public unless there is a public benefit to be achieved. In many situations, the line between benefit and injury is so fine that salat al istikharat is needed to reach a solution since no empirical methods can be used.


2.4 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 shari’at 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.



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.


3.0 REGULATIONS OF MEDICAL PROCEDURES, dhawaabit al tibaabat


Patient consent is necessary for history taking otherwise it is considered trespassing on privacy and spying. History taking provides an opportunity to discuss diseases of the heart that underlie physical disease. It is an opportunity for taubat and da’awat. It is also opportunity to advise on legal matters such as foster relations and ‘iddat. The physician is not obliged to report criminal information to the authorities unless there is demonstrable immediate public interest and necessity. Physical clinical examination also requires informed consent. A patient can only be examined against his or her consent only if there is a necessity relating to the life of the patient or to public interest such as criminal investigation. Mental patients can are not legally competent to give consent; the necessary consent could be obtained from a guardian, wali. Examination by a caregiver of the opposite gender requires special consideration. It is always preferable that physicians of the same gender carry out the examination. A physician of the opposite gender can be used only if a situation of necessity arises. A chaperone must be present. Examination limited to what is necessary. The results of laboratory investigations have the same requirements for confidentiality as history and clinical examination. The results of radiological investigations are confidential. Images that show the shape of the body parts can be considered showing ‘awrat and should not be seen except by authorized people only and for specific purposes. Invasive investigations carry a higher risk to the patient; their benefits should be carefully weighed against the benefits. These investigations should be carried out only if there is a clear necessity, dharuurat.



It is prohibited to use haram materials and najasat as treatment. What is prohibited as food or drink is also prohibited as medicine. Exceptions are made in cases of dharuurat. Medicine taken orally does not nullify wudhu. Any medicine that is taken but is not swallowed and is vomited out is considered like vomitus. Medicine given per rectum nullifies wudhu. Subcutaneous or intravenous or intramuscular injections do not nullify wudhu unless there is extensive external bleeding. Any medicine taken orally or rectally or any insertion of a scope will nullify saum.



Permitted surgical procedures include resection, restorative/reconstructive surgery, transplantation, blood transfusion, anesthesia, and critical care. Transfusion of whole blood or blood components is widely accepted and raises few legal or ethical issues. Blood donation is analogous to organ donation by a living donor. Transfused blood is not considered filth, najasat, because it is not spilled blood. Blood transfusion is allowed on the basis of dharuurat. There is no problem in blood donation between Muslims and non-Muslims because they share human brotherhood. There is no problem in blood transfusion between a man and a woman. Blood transfusion does not abrogate the wudhu of the donor or the recipient. Sale of blood is permitted using the analogy of sale of milk by wet nurse who is paid for her services. Attempts must be made to minimize inappropriate mixing of male and female health care personnel in a small confined space of the operating theater.



Dua, ruqyah, tawakkul, and raja are spiritual treatments. Immunization and other preventive measures are treatment before disease and are not denial of qadar. It is permitted to slaughter on behalf of the sick taqarruban ila al llaah and to give the poor. It is prohibited to slaughter for the jinn and the shaitan. Various traditional, alternative, and complementary therapies are permitted if they are of benefit. Other permitted treatment modalities are irradiation, immunotherapy, and genetic therapy.




The physician-patient is based on brotherhood. The physician must maintain the highest standards of justice. He should also follow the following guidelines from the sunnat: good intentions, avoiding doubtful things, leaving alone matters that do not concern him, loving for others, causing no harm, giving sincere advice, avoiding the prohibited, doing the enjoined acts, , renouncing greed, avoiding sterile arguments, respect for life, basing decisions and actions on evidence, following the dictates of conscience, righteous acts, quality work, guarding the tongue, avoiding anger and rage, respecting transgressing Allah’s limits, consciousness of Allah in all circumstances, performing good acts to wipe out bad ones, treating people with the best of manners, restraint and modesty, maintaining objectivity, seeking help from Allah, and avoiding oppression or transgression against others. The physician should be professionally competent (itiqan & ihsaan), balanced (tawazun), have responsibility (amanat) and accountability (muhasabat). He must work for the benefit of the patients and the community (maslahat).



No medical procedures can be carried out without informed consent of the patient except in cases of legal incompetence. Informed consent requires disclosure by the physician, understanding by the patient, voluntariness of the decision, legal competence of the patient, recommendation of the physician on the best course of action, decision by the patient, and authorization by the patient to carry out the procedures. Competent children can consent to treatment but cannot refuse treatment. The consent of one parent is sufficient if the 2 disagree. Parental choice takes precedence over the child’s choice. Courts can overrule parents. Life-saving treatment of minors is given even if parents refuse. 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.



As part of the professional contract between the physician and the patient, the physician must tell the whole truth. Patients have the right to know the risks and benefits of medical procedure in order for them to make an autonomous informed consent. Deception violates fidelity. If disclosure will cause harm it is not obligatory. Partial disclosure and white or technical lies are permissible under necessity. Disclosure to the family and other professionals is allowed if it is necessary for treatment purposes. Physicians must use their judgment in disclosure of bad news to the patient.



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. 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 can not 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.



The principle of fidelity requires that physicians be faithful to their patients. It includes: acting in faith, fulfilling agreements, maintaining relations, and fiduciary responsibilities (trust and confidence). It is not based on a written contract. Abandoning the patient at any stage of treatment without alternative arrangements is a violation of fidelity. The fidelity obligation may conflict with the obligation to protect third parties by disclosing contagious disease or dangerous behavior of the patient. The physician may find himself in a situation of divided loyalty between the interests of the patient and the interests of the institution. The conflict may be between two patients of the physician such as when maternal and fetal interests conflict. Physicians involved in clinical trials have conflicting dual roles of physicians and investigators.




The physician-patient interaction is both professional and social. The bedside visit fulfills the brotherhood obligation of visiting the sick. The human relation with the patient comes before the professional technical relation. It is 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, 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.



The patient should express gratitude to the caregivers even if there is no physical improvement. Patient complaints should be for drawing attention to problems that need attention and not criticizing caregivers. The patient should be patient because illness is kaffaarat and Allah rewards those who surrender and persevere. The patient should make dua for himself, caregivers, visitors, and others because the dua of the patient has a special position with Allah. When a patient sneezes he should praise Allah and the mouth to avoid spread of infections. It is obligatory for the attendants to respond to the sneezer. The patient should try his best to eat and drink although the appetite may be low. The caregivers can not force the patient to eat. They should try their best to provide the favorite food of the patient. The believing patient should never lose hope from Allah. He should never wish for death. The patient should try his best to avoid anger directed at himself or others. Getting angry is a sign of losing patience.



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, husn al dhann, and avoid evil or obscene words. They must observe the rules of lowering the gaze, ghadh al basar, and khalwat. Caregivers must have an attitude of humbleness, tawadhu'u, 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. They must seek permission, isti' dhaan, when 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.



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, maslahat, 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; Clinical skills laboratory: learning clinical skills by examining other students; 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.



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




A group is several interdependent and interacting persons. Work is enjoined in groups that are united, cooperative, open and trusting. Group members must be similar, empathetic, supportive, and sharing. Separation from group is condemned. Group norms must be respected. Breaking norms, secretive behavior, concealment of information, and secret talks destroy groups. Group membership has benefits of integration, stimulation, motivation, innovation, emotional support, and endurance. Group performance is superior to individual performance. Group membership has the disadvantages of arrogance, suppression of individual initiative, member mismatch, and intra-group conflict. Group formation has 4 stages: forming (acquaintance and learning to accept one another), storming (emotions and tensions), initial integration (start of normal functioning), total integration (full functioning), and dissolution. Mature groups have group identity, optimized feedback, decision-making procedures, cohesion, flexibility of organization, resource utilization, communication, clear accepted goals, interdependence, participation, and acceptance of minority views. Groups fail when constituted on the wrong basis, when members cannot communicate, when there is no commonality (interests, attitudes, and goals), and when they have diseases of hasad, nifaq, namiimah, gaybah, kadhb, riyah, kibriyah, hubb al riyasa, tajassus, and dhun al soo. An effective group follows the Qur'an and sunnat, members feel secure and not suppressed, members understand and practice sincere group dynamics, members are competent and are committed to the group and the leadership.



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.



Each member of the team carries personal responsibility with leaders carrying more responsibility. Leaders must be obeyed except in illegal acts, corruption, or oppression. Rafidah was good model of etiquette. She a kind, empathetic, a capable leader and organizer, clinically competent, and a trainer of others. Besides clinical activities, she was 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.



Basic duties of brotherhood and best of manners must be observed. Encouraged are positive behaviors (mutual love, empathethy, caring for one another; leniency, generosity, patience, modesty, a cheerful disposition, calling others by 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).



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 are examined in the presence of a chaperone. The gaze should be lowered. Modest and covering must be observed. Display of adornments that enhance natural beauty must be minimized.



7.1 PATIENT HYGIENE, nadhafat al mariidh

The following are not najasat: fresh blood inside the body, interstitial space fluids, effusions, and physiological secretions (esophageal, gastric, and naso-gastric). The fluids from an ileostomy are not najasat but those of a colostomy are najasat. A person with a discharging fistula makes widhu and prays. Fistulas (vesico-vaginal, vesico-intestinal, urethro-vaginal, urethro-rectal, or urethro-cutaneous) may discharge stool or urine. Persons with discharging stomas and fistulas make wudhu and offer salat immediately.



Wudhu has physical, psychological, and social or emotional benefits. It is washing or wiping with a wet hand the exposed parts of the body (face, hands, forearm, head, and feet) once, twice, or thrice. It suffices to wipe the turban, the top of socks, or the bandage. Wudhu is nullified by passing urine, feces, or flatus; urethral discharge; prostatic discharge; menstruation; deep sleep; vomiting; and touching the external genitals. Wudhu is not nullified by medical treatment involving bleeding; touching a woman with no sexual desire or intentions; bleeding from a fresh wound; inter-menstrual bleeding; and kissing. A person who has no wudhu cannot touch or read the Qur'an. In the absence of water, tayammum is carried out for wudhu, in extreme cold, some disease conditions and wounds that would be aggravated by use of water. Tayammum is wiping the face, hands, and forearms after lightly touching soil with dry hands.


7.3 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 qiyam al layl and try to fulfill the 5 prescribed prayers. Salat can be interrupted for an urgent need that could be medical or otherwise. Soldiers on the battle field can pray abridged prayers and physical movements are changed. Women are excused from salat during the period of menstruation because of the associated physiological stress.



The elderly and patients with chronic or terminal illness are permanently excused from saum. They can choose to feed the poor instead or their heirs can make up their missed saum (qadha) if they die. Patients with curable illnesses, pregnant or breasfeeding women, women in haidh or nifaas are temporarily excused from saum but they have to make up (qadha al saum) before the next Ramadhan. Saum in haidh or nifaas is invalid. Hypoglycemia and dehydration are prevented by prohibition of continuous saum and encouragement of early iftaar and late suhuur. Diabetics should consult trusted physicians before saum. The following do not nullify saum: drugs applied externally on the skin, eye drops, nose drops (if not swallowed), injections (sub-cutaneous, intra-muscular, and intra-venous), and sub lingual tablets. Elective medical procedure should be delayed until after saum. The following nullify saum: inhalants, nourishing i.v. injections, drugs taken orally or rectally.


7.5 HAJJ FOR THE SICK, hajj al mariidh

The physically disabled can circumbulate the ka’aba 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.

ŠProfessor Omar Hasan Kasule, Sr. July 2007