is based on the premise that students should be taught the basic theories and principles of ethics so that they can reason
out ethical dilemmas on their own. They also nee to be taught specific legal rulings because not everything has to be reasoned
out. There are issues for which Islamic Law provides ethico-legal rulings. The paper presents the Purposes of the Law, maqasid al shari’at, and Principles of the Law, qawa’id al shari’at, as the bases for ethico-legal reasoning.
Islamic Law also gives detailed guidelines for physician behavior and etiquette that should be taught using case studies and
discussion. These include responsibility, confidentiality, respect for patient autonomy, and fidelity. Each clinical department
should develop a practical demonstration-based teaching of specific legal rulings for patients relating to physical acts of
worship, fiqh al ‘ibadaat; activities of daily living, fiqh al ‘aadaat; disease conditions, fiqh al amraadh; and new
problems arising out of modern medical technology, fiqh al mustajiddaat. Details
of these rulings can be found at the author’s website http://omarkasule.tripod.com.
PROTECTION OF RELIGION, hifdh al din
Physical health and ‘ibadat: Protection
of diin 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. The principal forms of physical ‘ibadat are the
pillars of Islam: prayer, salat; fasting, siyaam;
and pilgrimage, hajj. A sick or a weak body can perform none of them properly.
Mental health and ‘aqiidat: Balanced
mental health is necessary for understanding ‘aqiidat and avoiding false
ideas that violate ‘aqiidat. Thus medical treatment of mental disorders thus
contributes to ‘ibadat.
PROTECTION OF LIFE, hifdh al nafs
Preservation of quality life: 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.
Nutrition: Medicine contributes to the preservation and continuation of life by making
sure that the nutritional functions are well maintained.
Disease prevention: Medical knowledge is used in the prevention of disease that impairs
Disease treatment: Both medical and surgical interventions to treat disease are attempts
to return the body to its original healthy state and maintain as high a quality of life as is possible.
Rehabilitation: Even where complete cure is not possible medical provides rehabilitative
services that aim at preserving as much function as is possible and that prevent any further deterioration.
PROTECTION OF PROGENY, hifdh al nasl
Healthy children become healthy parents: 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: Measures to prevent or alleviate infertility enable couples
to fulfill the procreation function.
Prenatal care, peri-natal care, and postnatal care: The care for the pregnant woman,
perinatal medicine, and pediatric medicine all ensure that children are born healthy and start life healthy.
PROTECTION OF THE MIND, hifdh al ‘aql
Relief of physical stresses: 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 psychiatric conditions: Treatment of neuroses and psychoses restores
intellectual and emotional functions.
Treatment of addictions: Medical treatment of alcohol and drug abuse prevents deterioration
of the intellect.
PROTECTION OF WEALTH, hifdh al mal
Health of workers and economic productivity:
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.
Cost of medical care: 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.
PRINCIPLE OF INTENTION
Each action is judged by the intention behind it: This principle calls upon the physician
to consult his inner conscience. There are many issues about medical procedures and medical decisions that are hidden from
public view. A physician may carry out a procedure for a stated reason that seems plausible on the outside but he may have
a different but hidden intention. A practical example is use of morphine for pain relief in terminal care when the actual
intention may be to cause respiratory depression that will lead to death.
What matters is the intention and not the letter of the law: Legal arguments based
on literal translation of the text may be used to justify immoral acts. An example is the interpretation of the hadith on
embryological development to justify abortion on demand before ensoulment.
Means are judged with the same criteria as the intentions: No useful medical purpose
should be achieved by using immoral methods.
2.2 THE PRINCIPLE OF CERTAINTY, qaidat al yaqeen
Incertainty in medicine: In both the diagnosis of disease and choice of treatment,
modern medicine does not reach the standards of yaqeen demanded by the Law. Experimental
therapies are used without certainty of the effect. In many cases a presumptive diagnosis is made and treatment proceeds.
Treatment may be symptomatic where there is no clue to the cause. Certainty, yaqeen,
as a situation when there is no doubt, shakk, or hesitation, taraddud, does not exist in medicine.
Probability and relativity: Everything is probabilistic and relative. Treatment decisions
are best on a balance of probabilities. It is however not true to treat medical decisions as educated guess work because they
are based on careful analysis and balance of empirical evidence. They also reflect that medicine is still an art. The experienced
physician accumulates sufficient clinical experiences that make his judgments nearer the truth.
Treatment based on probable diagnosis: Some practical issues may arise due to lack
of 100% certainty in medicine. When a diagnosis is made, it should be treated as a working diagnosis until new information
is obtained to change it. This provides for stability and a situation of quasi-certainty without which practical procedures
will be taken reluctantly and inefficiently. In this case we apply the principle of the Law that a certainty cannot be voided,
changed or modified by an uncertainty, al yaqeen la yazuulu bi al shakk. When an assertion is an established truth,
it should not be changed by a mere doubt being raised about all or some of its components. Existing assertions should continue
in force until there is compelling evidence to change them, al asl baqau ma kaana ala ma kaana.
Conservative approach: A pathological or clinical event is considered of recent occurrence
unless there is evidence to the contrary, al asl idhafat al haadith ila aqrab waqtihi. An acquired attribute or change
is not accepted as normal unless there is compelling evidence, al asl fi al umuur al ‘aaridhat al ‘adam.
An existing condition whose origin or cause is not known should be left as is until there is evidence to the contrary, al
qadiim yutraku ala qadamihi. This principle protects against unnecessary medical interventions in long-standing anomalies
or deformities that do not appear to cause any discomfort. 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, al qadiim la yakuun dhararan.
Permissibility: All medical procedures are considered permissible unless there is
evidence to prove their prohibition, al asl fi al ashiya al ibaaha. 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, al asl fi al abdhai al tahriim.
THE PRINCIPLE OF INJURY, qa’idat al dharar
Medical intervention to alleviate injury: Medical intervention is justified on the
basic principle is that injury, if it occurs, should be relieved, al dharar yuzaal. The physician should however cause
no harm in the course of his work according to the principle of la dharara wa la dhirar. Injury should be prevented
or mitigated as much as is possible, al dharar yudfau bi qadr al imkaan. When an injury is found in a patient it is
presumed to be of recent origin unless there is evidence to the contrary, al dharar la yakuun qadiiman. It therefore
must be alleviated.
Causing injury to alleviate injury: An injury should not be relieved by a medical
procedure that leads to an injury of the same magnitude as a side effect, al dharar la yuzaal bi mithlihi.
Balance of injury vs benefit: 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,
dariu an mafasid awla min jalbi al masaalih. If the benefit has far more importance and worth than the harm, then the
pursuit of the benefit has priority.
Balance of the prohibited vs the permitted: 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, idha
ijtama'a al halaal wa al haram ghalaba al haraam al halaaal.
Choice between 2 evils: 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, ikhtiyaar ahwan al sharrain. A
lesser harm is committed in order to prevent a bigger harm, al dharar al ashadd yuzaalu bi al dharar al akhaff. In
the same way medical interventions that in the public interest have priority over consideration of the individual interest,
al maslahat al aamat muqaddamat ala al maslahat al khaassat. The individual may have to sustain a harm in order to
protect public interest, yatahammalu al dharar al khaas li dafiu al dharar al aam. In the course of combating communicable
diseases, the state The state cannot infringe the rights of the public unless there is a public benefit to be achieved, al
tasarruf ala al ra'iyat manuutu bi al maslahat.
PRINCIPLE OF HARDSHIP, qaidat al mashaqqat
Necessities legalize the prohibited: Medical interventions that would otherwise be
prohibited actions are permitted under the principle of hardship if there is a necessity, dharuurat. Necessity legalizes
the prohibited, al dharuraat tubiihu al mahdhuuraat.dharuurat. 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, al mashaqqa tajlibu al tayseer. This is predicated on the general principle of
Islam as an easy religion that cannot be made difficult and a burden for its followers, al ddiin yusr wa lan yashaada hadha
al ddiin illa ghalabahu. The law is relaxed in restrictive situations, al amr idha dhaaqa ittasa. The law is restrictive
in lax situations, al amr idha ittas’a dhaqa.
Limitations of the principle of hardship: 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, al
dharuraat tuqaddar bi qadriha.
Temporary application of the principle of hardship: 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, al idhtiraar la yubtilu haqq al ghair. The temporary legalization of prohibited medical action
ends with the end of the necessity that justified it in the first place, ma jaaza bi ‘udhri batala bi zawaalihi.
This can be stated in al alternative way if the obstacle ends, enforcement of the prohibited resumes, idha zaala al maniu,
aada al mamnuu’u.
Delegation: It is illegal to get out of a difficulty by delegating to someone else
to undertake a harmful act, ma haruma fi’iluhu, haruma talabuhu.
THE PRINCIPLE OF CUSTOM or PRECEDENT, qaidat al urf
Generally accepted standard of care: The standard of medical care is defined by custom.
It is now becoming common to have written clinical practice guidelines.
The customary is authority: The basic principle is that custom or precedent has legal
force, al aadat muhakamat. Thus generally accepted standards of clinical care are considered enforced by the shari’at.
Definition of customary: What is considered customary is what is uniform, widespread,
and predominant, innama tu’utabaru al ‘aadat idha atradat aw ghalabat, and not rare, al ibrat li al
ghaalib al shaiu la al naadir. The customary must also be old and not a recent phenomenon to give chance for a medical
consensus to be formed.
REGULATIONS OF PHYSICIAN CONDUCT, dhawaabit al tabiib
COMPETENCE, AND RESPONSIBILITY
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).
procedures can be carried out without informed consent of the patient except in cases of legal incompetence. The patient has
the purest intentions in decisions in the best interests of his or her life. Others may have bias their decision-making. The
patient must be free and capable of giving informed consent. Informed consent requires disclosure by the physician, understanding
by the patient, voluntariness of the decision, legal competence of the patient, recommendation of the physician on the best
course of action, decision by the patient, and authorization by the patient to carry out the procedures. The patient is free
to male decisions regarding choice of physicians and choice of treatments. Consent can be by proxy in the form of the patient
delegating decision making or by means of a living will.
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.
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 ofr insurance.
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. al suffering.