17.1.1 INTRODUCTION

Islamic Law is comprehensive. It is a combination of moral and positive laws. Secularized European 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. Concern with moral issues in medicine increased in the recent past due to new medical technology and increase in moral violations by medical practitioners. Europeans have written recently about ethics. In 1976 Beauchamps and Childress wrote authoritatively about ethical theory and ethical principles. The following international declarations covered legal medical issues from a European world-view: 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.

17.1.2 EUROPEAN ETHICS

There are three European approaches to ethical analysis: normative (what ought to be done) or practical (what most people do), and non-normative (what is actually going on). Europeans have 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. European 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.

There is no one coherent European theory of ethics because of the historical background. During the Roman Empire a marriage of convenience held between Judeo-Christian concepts and pagan Greco-roman concepts. The marriage was strained by a partial return of Europeans to their Greco-Roman heritage and marginalization of the Christian Church starting with the renaissance and reformation through the enlightenment, modernism and now post modernism. In these circumstances it was difficult to define one coherent European ethical theory. Beauchamp and Childress listed eight 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.

There are 4 basic European ethical principles according to Beachamp and Childress (1994) are: autonomy, beneficence, non malefacence, and justice.

17.1.3 ISLAMIC ETHICS

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. 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. 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.

17.1.4 PURPOSES OF MEDICINE

PROTECTION OF 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. The principal forms of physical ibadat are the 4 pillars of Islam: prayer, salat; fasting, siyaam; pilgrimage, hajj, and jihad. 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. General public health has a special relation to jihad. If the general health of a population is not satisfactory, there will not enough youths to be recruited into the armed forces. There will also not be enough healthy workers to provide the material and logistics required for successful prosecution of war. If the obligation of jihad is not fulfilled, the Muslim community will be defeated and subjugated by others who will not give Muslims freedom to practice religion.

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.

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.

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.

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.

17.1.5 PRINCIPLES OF MEDICINE

THE PRINCIPLE OF INTENTION

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.

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. 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.

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.

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.

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.