1.1 LAW and ETHICS:

Islamic Law is comprehensive. It is a combination of moral and positive laws. European law denies moral considerations associated with ‘religion’. Its difficulties to solve issues in modern medicine that required moral considerations led to the birth of the discipline of medical ethics. Muslims did 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. Many writings have been published 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.

1.2 APPROACH TO 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). Morality in the European perspective became communal consensus about what is right and what is wrong. Thus ethics became relative and changeable with change of community values.

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. 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 jurists and physicians.

2.0 ETHICAL THEORY: ISLAMIC vs EUROPEAN PERSPECTIVE

2.1 ETHICAL THEORIES ACCORDING TO BEAUCHAMPS and CHILDRESS

There 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.

According 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.

The 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.

According 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.

The 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.

The case-based theory is practical decision-making on each case as it arises. It does have fixed philosophical prior assumptions.

2.2 THE ETHICAL THEORY BASED ON THE PURPOSES OF THE LAW, maqasid al shari’at

For 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.

Protection of morality is the most important purpose. Medical practice should not violate moral or religious injunctions.

The 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.

Medicine 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.

Medical 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.

Medicine 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.

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. We shall discuss this matter in detail later.

3.0 ETHICAL PRINCIPLES: ISLAMIC vs EUROPEAN PERSPECTIVES

3.1 ETHICAL PRINCIPLES ACCORDING TO BEAUCHAMPS AND CHILDRESS

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

The Principle of Autonomy is the power of the patient to decide on medical procedures.

The Principle of Non-maleficence is avoiding causation of harm.

The Principle of Beneficence is the providing benefits and balancing them against risks and costs.

The principle of justice is distribution of benefits, costs, and risks fairly

3.2 ETHICAL PRINCIPLES BASED ON THE PRINCIPLES OF THE LAW, qawa’id al shari'at

There 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.

The 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.

The 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.

The 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.

The 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.