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"The
Islamic Vision of Some Medical Practices"
DISCUSSION
Chairman,
Sheikh Ezzuddeen Al-Khateeb
Praise be to Allah, and peace be upon His Messenger.
To begin:
Brothers, I extend my deepest thanks and gratitude to His Excellency the Minister of Health Dr. Abdulrahman Abdullah Al-Awadi who made this meeting possible, and to those shouldering the responsibility of this blessed symposium. We now begin this session by giving the floor to Dr. Muhammad Sulaiman Al-Ashqar who will speak on Secret-Disclosure in Islamic Law.
Dr. Muhammad Suliman Al-Ashqar's Paper (Research Section P. No. 82).
Chairman, Sheikh Ezzuddeen Al-Khateeb
The floor is now given to His Eminence Sheikh Muhammad Al-Mokhtar Al-Salami to deliver his speech on "The Doctor Between Disclosure and Withholding".
Sheikh Muhammad Al-Mokhtar's paper (Research Section P. No. 71 ).
Chairman, Sheikh Ezzuddeen Al-Khateeb
And now the floor is given to His Eminence Dr. Hassan Al-Shazli: Legal consequence for A Doctor Disclosing Some Confidences.
Dr. Hassan Al-Shazli's paper (Research Section P. No.103).
Chairman, Sheikh Ezzuddeen Al-Khateeb
I beg to name the following members who will constitute the recommendations committee to meet after the presentation of Sheikh Muhammad Al-Ghazali and agree on their mode of action: Dr. Hussain Al-Jazaeri Chairman, Dr. Hassan Hathout Rapporteur, Dr. Muhammad Naem Yaseen, Dr. Abdulsattar Abu-Ghudda, Dr. Mansour Al-Mansour, Dr. Muhammad Al-Ashqar, Dr. Salah Al-Ateeqi, Dr. Hassan Al-Shazli, Dr.Ojail Al-Nashmi, Dr. Abdullah
Basalamah, Dr. Tawfic Al- Tamimi, Dr. Mokhtar Al-Mahdi, Dr. Muhammad Haitham Al-Khayyat, Dr. Ali Abdulfattah, Dr. Ali Al-Saif, Dr. Ahmad Rajaii Al-Gindi.
The Research of Dr. Tawfiq Al-Wa'i: Disclosure of Secret, will he kindly come up. (Research Section P. No.154).
Chairman, Sheikh Ezzuddeen Al-Khateeb
The discussion will follow Sunset Prayer; and those who wish to participate are kindly request to register their name so that the session may be well organised.
Dr. Hassan Hathout
I thought that the presentation of His Eminence Sheikh Ghazali will be after the Sunset Prayer, so I believe there is no way but to postpone the discussion till tomorrow.
Chairman, Sheikh Ezzuddeen Al-Khateeb
Debate is postponed till tomorrow, however this does not mean that those wishing to participate do not register their names. Meeting is adjourned for Sunset Prayer.
First Session
The first item in this session is discussing the topics of the first day.
Chairman, Dr. Hussain Al-Jazaeri
In the Name of Allah, the Rahman, the Merciful.
Yesterday we were pinched for time and so we couldn't open the door for discussion, but we'll do it today I'd like to begin this session by registering the names of those who wish to participate in the debate. Registrations should have already been made with Dr. Hassan Hathout yesterday but if you don't mind brothers, we can immediately start registrations, and we'll open the door for discussion with a maximum time limit of one hour, then we proceed to today's agenda as drawn up.
Chairman, Dr. Hussain Al-Jazaeri
We have 15 names for comments and discussion.
Sheikh Badr Al-Metwalli
In the Name of Allah, the Rahman, the Mercijul. Our sons the doctors have cleared themselves from blame and brought their problems forward to be critically examined and decided upon by Muslim jurists, and consequently matter now rests with the jurists. I say, and Allah is the Only Guide - There are certain things on which there is no disagreement and we should not waste time discussing them. The principle of keeping a secret is one that is taken for granted in the Sharia and in Law at any level; So we should not waste time in discussing it, demonstrating its necessity or indespensability. ..etc.
The second point js also one taken for granted, namely, the principle of Exception on the basis of what was said by the Prophet,
"He who ever takes an oath, and then sees that another is better than the first, should do what is better and make expiation for the (dissolved) Oath".
Hence, there are certain things that should be excepted. The problem is how to make exceptions, how to make analogies, where lies the good and where lies evil. Allah, highly exalted and glorified be He, has willed this world of nature to contain good mingled with evil. Most often, there isn't that thing which is purely good or absolutely evil. Then there are factors that interlockingly affect the taking of decision: vantagepoint, prejudice, emotion and propaganda are factors negatively affecting adoption of the right stance. Therefore, I believe and Allah knows best, and this is a personal opinion, that side by side with each medical institution, and ad hoc committee of doctors and jurists should be constituted to study such topics. I can't figure a rule applicable to all the cases discussed yesterday, to have an all-problem rule is not feasible; for each single case there is tradition and for each case there are governing conditions that will either make it exceptionable or not, and that is why I am of the opinion that an expert panel of jurists and doctors must be formed to support every medical institution in all such problems, and a provision should be made that the opinion given by such an ad hoc, committee shall be either to make it permissible or impermissible, for the doctor to disclose or to guard that secret, since here lies the problem for which we'll be held responsible to Allah. There should be a committee to judge each case, but to adopt all encompassing rule is not practical. I think there isn't such rules that are all-embracing except those general ones in the Sharia which are conclusive.
Dr. Hamed Jami
Sheikh Badr has spared me much of what I intended to say especially about things related to cooperation of Sharia thought with medical thought in the face of new developments in medical practices so that the opinion formed is both medical, scientific and lawful. I support His Eminence Sheikh Badr's proposal as regards concealment. I would have proposed it myself, but now I have moved from suggesting to advocating it. I would like to add that keeping of secret is compulsory in the Sharia and disclosure of it is prohibited - but secrets are of degrees. Mere disclosure of secret is perhaps, not allowed, yet disclosure of secret may extend to that which the Sharia forbids, namely backbiting. When the patient tells doctor something that does not disgrace him, then revealing it will be deemed disclosure of secret, which is forbidden by the Traditions stated.
If the patient has a defect and tell the doctor about it, revealing it will be backbiting. If this defect is something that is reported to authorities or individuals, it is then calumny. There are scales of prohibition for disclosure of secret which is all the way forbidden. Therefore what is the way-out? The way-out is that we can't set a rule that is applicable to all cases since for each single case there are governing conditions. Nevertheless, we have the Sharia way-outs, first among which is "pun". It means saying a word that has two meanings; one apparent and the other hidden from which speaker and listener understand what has actually taken place. An example of this is what happened to Ma'adh Ibn Jabal, who was sent on an assignment by Omar. When he returned his wife had anticipated, as all wives do, a present or something like that coming from the trip. He didn't bring her anything. 'Haven't you brought anything that husbands bring to their wives?' She asked. And he answered her 'There was a "controller" with me (which might mean his conscience). She thought Omar had sent an "observer" along with him'. She said 'Abu-Bakr had commissioned you, so had the Messenger of Allah, may the blessings and peace of Allah be upon him, before him. Neither of them had sent a controller with you; then Omar comes and sends one with you!
Then she disseminated the matter. However, Omar summoned Ma'adh, then asked him "What did you tell your wife?" "I told her that a controller was with me just to divert her attention from asking for a present after I had returned from the journey. Omar gave him some money and he pleased her with it. This is "pun", and it is a way-out provided by the Sharia, There is a Hadith or a tradition that says if you say something indirectly, that is a safe way to avoid a lie: This is one way out. The other is Sharia prescripts. We have a fundamental rule of Sharia prescripts, namely removal of harm. From this rule many other rules were derived, among which is the rule that says: A lesser harm is permissible to prevent a greater one from taking place. In an event such as the one previously referred to i.e. when a person actually loses eyesight yet the eye itself is intact and he drives a car. There is no objection - I mean there is no objection in the Sharia to prevent occurance of a greater harm by a lesser one. With respect to matters involving disclosure of secret that represents a contravention, guilt or the sin of backbiting, ways-out acceptable in the Sharia, can be resorted to. We can't make a general rule that is applicable to all cases, for each one has its own circumstances. Therefore, I agree with the suggestion that the jurist and the doctor be joined in an institution or committee that looks into the circumstances of each case on its own merits.
Dr. Ujail Al-Nashmi
Yesterday our professors and honourable Sheikhs discussed the question of disclosure of secret. The topic was about the significance of keeping secret and some corroborative events from the immaculate sunna were stated. What is required, in my modest opinion - is to explain the nature of disclosing secrets, or what is called characterization in the Sharia of disclosure of secret in respect of explaining mandatory and circumstantial legal consequences. Mandatory legal consequence is explained in the light of necessity dictates recommendedness, prohibitability, reprehensibility or permissibility. The circumstantial legal consequence of disclosure of secret is explained in terms of its being a causative factor for a certain matter. If we can determine mandatory and circumstantial legal consequences of disclosing secret, we can know the legal consequence of new cases which are inquired about by our doctors.
Knowledge of the legal consequence on each of the cases submitted is not effected by giving each individual case its own legal consequence for these subsidiary cases, no matter how diverse and ramified they seem have a common denominator, namely disclosure of secret. So we suffice ourselves with giving the legal consequence of disclosure of secret. We have learned during our study of the science of jurisprudence fundamentals that determination of legal consequence of a branch or a divisional case is effected either through comparing it with similar juristic branches then applying legal consequence of given branches or the rule that govern these analogues and similar matters, and this is the method adopted by the Hanafites - or, by comparing it, after determination of nature, with relevant fundamentals whether in the form of a prescribed text or a rule, which is the method adopted by the majority of jurists, I'll follow the Hanafites' method to get to a judgment on disclosure of secret.
The question of disclosure of secret, is comparable to two branches or two juristic questions, namely backbiting on one hand and testimony on the other. There are governing rules for both of them. Backbiting is prohibited by the text of the Sunna. Abu Huraira narrated that the Messenger of Allah, may the blessings and peace of Allah be upon him, said:
"Do you know what is backbiting? They (the companions) said: Allah and His Messengar know best. Thereupon he (the Prophet) said: Backbiting implies your talking about your brother in a manner which he does not like. It was said to him: what is your opinion about this that if I actually find (that failing) in my brother which I made a mention of? He said: If (that failing) is actually found (in him) you in fact backbited him, and if that is not in him it is a slander".
(Related by Muslim).
Disclosure of secret is a kind of backbiting becasue as Dr. Hamed stated, it is mentioning what another person hates about himself. If it was not hateful to the patient it wouldn't be a secret. Disclosure of secret may be more prohibitable than backbiting for it is agreed by consensus that a secret must be kept. Moreover, it represents a betrayal of confidence and betrayal is a sign of hypocrisy as the Prophet said:
"the signs of a hyprocrite are three: when he speaks, he tells a lie, when he promises, he always breaks it (his promise), and if you trust him, he betrays".
This indicates that disclosure of secret is part and parcel of backbiting, and since the fundamental legal consequence of backbiting is prohibition, then disclosure of secret is also prohibited.
Yet, in principle, there are exceptions to backbiting. Backbiting has been prohibited in order to protect certain legitimate interests and to prevent evil; if concealment of a matter that concerns people should ruin lawful interests or bring about evil, the fundamental judgment must, then be changed. Therefore, jurists and transmitters of prophetic traditions have mentioned exceptions to the basis for prohibiting backbiting.
Al-Nawawi enumerated six of them that entail change of legal consequence of backbiting from prohibitedness to permittedness; recommendedness or necessariness, for concealment, in this case, causes harm and harm should be removed. The same is applicable to secret disclosure which is liable to exceptions since the wisdom for inviolability and prohibitedness is safeguarding interests that concern the patient, someone else or the medical profession or for warding off evils that result from what has been mentioned. However, application of this legal consequence under new adverse circumstances that entail non-applicability, the rationale behind prescribing it will change from safeguarding of interest and warding off evils to the contrary, namely causing harm and affliction to patient or to other persons or the medical profession.
Hence the ruling should be modified so that it can help prevent evil, and realize lawful interest, and thus evasive legal devices are avoided, and harm should be warded off.
This first part of the question has been about determining the nature of disclosing secret. The other part which involves exception or change of the legal ruling on secret disclosure from prohibitedness to permissibility, leaves us faced by two questions: Is adoption of the legal ruling of exception necessary or not? And what is the basis or determinant for either case? If it is necessary, the pretext then is the principle of testimony. Testimony is obligatory Allah says:
AND LET NOT THE WITNESSES REFUSE WHEN THEY ARE CALLED ON.
Abstention from testimony is prohibited owing to ensuing harms such as forfeiture of rights and occurrence of wrongings'. Hence Allah, says:
AND WHOSOEVER HIDETH IT, HIS HEART VERILY IS SINFUL.
Accordingy disclosure of secret in these cases is a kind of obligatory act of testimony which entails sinfulness if abstained from.
On the basis of the aforementioned, cases in which disclosure of secret is necessary can be explained as follows:
First
If nondisclosure results in or possibile will result in harm to patient or to another party whether individual or group.
Second
If it resuts in or possibly will result in any adverse effect upon patient or another party in that the one who is ignorant of the secret may do things which he wouldn't if he knew about it.
This is in respect of the legal ruling of disclosure of secret in case of necessariness. In reference to the legal ruling on disclosure of secret, as an exception, in cases other than necessariness such as recommendedness or permissibility, disclosure of secret then, in my judgement, comes under recommended or necessary interest, assessment of which is left to the discretion of the Muslim doctor himself. He is to assess each individual case, and the method of allusions and punning is available for him to resort to, especially in cases connected with matrimonial affairs. Judging by his experience and knowledge of patient, nature of illness and the other parties concerned, he may deem it advisable to disclose secret or he may not, and honest opinions may diverge on this.
In conclusion, therefore the question of disclosure of secret is governed by the following rules and restrictions: Rule of necessity and need, rule of harm and of doing the lesser harm, rule of prohibition of evasive legal devices, rule of eliminating objection, rule of prevention of evils taking precedence over bringing advantages and rule of public interest in general. These rules and restrictions can supply answers to all questions regardless of origins and circumstances. Every individual event or subsidiary case is compared to them and legal rulings are deducted on the basis of the relevant rule.
Chairman Dr. Hussain Al-Jazaeri
Thank you Dr. Ojail Al-Nashmi now we have heard two viewpoints, one of which maintains that every case must be studied and that it has its own circumstances, and the other, of Dr. Ojail Al-Nashmi, tries to assemble the largest possible number of cases under certain rules. Each of these cases shows how it is important for the doctor to know matters of the Sharia more than he has known hitherto.
Dr. Ibrahim Al-sayyad
The subject of confidentiality of profession was not incuded in the curricula of medical colleges. It was a loaned word from the West, until our professor Dr. Muhammad Ahmad Sulaiman, may Allah have mercy upon him. the first rector of Al-Azhar University after innovation, included it in the courses of Faculties of Medicine. When he was invited to the First International Conference On Islamic Medicine in Kuwait, to talk about rules of medical profession, he wrote to us: There is no such a thing as "rules of medical profession. There are things invented by the West and by the Greek. But there are Islamic ethics and Islamic patterns of behaviour under which the Muslim conduct in any field of work, whether medical or else, is defined. Some Muslim doctors nowadays tend to give excessive awe and sacredness to what is called "confidentiality of medica profession". Yesterday we heard, in this place the terms "Sacredness of Professional Confidentiality".
There is no such a thing as "Sacredness of Professional Confidential- ity". There is sacredness of text and of Sharia interests.
If we review what jurists said in their presentations yesterday, we will find the Hadith, that calls for keeping of secret such as the story of the Prophet with his wives and the secrets he confided to one of them, to which the verse
AND RECALL WHAT TIME THE PROPHET CONFIDED A STORY UNTO ONE OF HIS SPOUSES
which comes under moral rules. There is also the story of Hazzal and the Prophet's address to him:
"Had you covered him with your garment..it would have been better for you".
And the Hadith of
"He who sees a "private part" and does not expose it, his act will be tantamount to bringing a newborn girl buried alive back to life".
And the Hadith of trust
"If a man talks about something then he looks around, his talk is a trust".
And the Hadith on slandering one's lineage and lamentation on the dead.
On the other side we find an explicit verse, namely
AND HIDE NOT TESTIMONY; AND WHOSOEVER HIDETH IT, HIS HEART VERILY IS SINFUL.
and we find, in respect of openly informing patient 'of his illness and forbidding him from mixing with the healthy Muslims, the Hadith:
"We have accepted your allegiance, so you may go"
which was directed to the leper of Thaqif. We also find hadiths that clearly indicate exception:
"Gatherings are a trust except three: one in which blood is unlawfully shed, an impermissible sexual relation is made permissible..."
and we also find the hadith that a counsellor is trusted, and among the duties of a trusted counsellor is to give advice in what he is entrusted with.
A court in Kuwait refused to give decision on a case when a doctor, who stood witness, refused to testify. The court excused him though he refused to talk about a certain matter, even though it was one of the four exceptions to keeping secret, which is permissible to reveal. It was possible for him to make recourse to but he refused on the basis of confidentiality of profession. The court didn't punish him; instead it just refused to give a sentence. This is in addition to what Dr. Al- Tabtaba'i stated two weeks ago when lecturing at the Law Faculty on profession secrets. Now, this indicates that we have reached to a point of breakir Sharia rules.
Therefore, what I want is that we get rid of what is called "sacredness of professional confidentiality" and go back to the fundamental rules which were stated in detail, for each case, by Dr. Ojail Al-Nashmi, without giving a special and distinctive status to the profession of medicine. Doctors have nothing to distinguish them from other professions. It is argued that their profession is characterized by having more privateness than any other profession. The legal profession has much more privateness. All occupations have privacies that enable workers to have access to an agent or customer, exactly as the profession of medicine. So, let us apply fundamental rules that govern harm and interest and get rid of a distinct confidentiality of the medical profession. If we consider the presentation of Dr. Tawfiq Al-Wa'i yesterday, we find that he emphasized things that help safeguard the nation. Then we saw that his Eminence Sheikh As-Salami deemed permissible not to reveal AIDS cases that appear in a country if authorities in such a country don't mandate reporting it. Add to all this the event of plague when both the one who has already caught the disease and others who are faced with it are forbidden to get out of the plague - stricken area for the sake of protecting the Muslim nation, and protection of Muslim nation is given priority to anything else. This is further supported by the Hadith of the Prophet,
"Plague offers martyrhood to every Muslim".
Therefore whoever remains within a plague-stricken area and doesn't get out, in order to safeguard the Muslim nation from harm, then dies of plague, is a martyr, for pains and hard ships he has patiently suffered by remaining in this place. Protection of the Muslim nation has priority over keeping secrets and over what they call "patient's right" and over any other consideration even if the laws of the country do not make a legislation that permits reporting of a certain disease. Therefore, I maintain that sacredness is only for text, sacredness is for safeguarding intentions of Sharia, and there is no sacredness for any confidentiality of a profession whatsoever.
Chairman Dr. Hussain Al-Jazaeri
Thank you Dr. Ibrahim Al-Sayyad. We have half an hour and eleven speakers, so I hope they will all be as brief as possible.
Dr. Omar Al-Ashqar
What my brother Dr. Ojeil Al-Nashmi referred to, namely determination of the fundamental rules from which legal rulings are deducted, is good in a research field. But in a field like this symposium, where doctors inquire about the legal ruling of specific issues, it is difficult for them to understand or comprehend determination of fundamentals in Sharia in such questions. It is the jurist's job to determine by himself, then explain subsidiary cases for whoever inquires. So, I suggest that jurists discuss subsidiary problems and questions because doctors want to know the legal verdict.
Yesterday, I referred to some subsidiary subject. I won't speak again " about them, but would like to add some thing about the case in which the doctor knows that a female patient has committed fornication. The judgment of the Sharia is that he must not report the matter, for proving crime of adultery or fornication is effected in a certain way namely by bringing forward four witnesses or through confession. Comment made by Sheikh Abdulrahman that pregnancy is proof of adultery is, I think, not correct. It is a presumption. Yet, she might have been forced. She might have been slept with unawares as it happens nowadays. Pregnancy might have taken place by means other than fornication. In short, there are other possibilities. This is unless she confesses. This question does not have consensus. Sheikh Abdulrahman, I guess, has confused this with the case of one to whom a child's kinship is attributed whereas husband has been away for years from wife. Yes, such a child is not attributed to him. But the question is about pregnancy and whether it is deemed a viable proof of adultery. This is a controversial question among the Four Imams and followers. With respect to the question of adultery, the doctor should not report it - Sharia wants that adultery should not be publicized. If it is publicized, everyone who talks about it without having a proof is flogged. If it takes place in an isolated place that is not known by anybody, and consequently is not talked about by anyone, it will harm no-one except the perpetrator. Otherwise, if it is made public it will be like a filthy pond which sends out unpleasant smells. This is not comparable to the case of epileptic person, the case of alcoholic aircraft pilot or addict or epileptic car-driver. This is quite a different subject.
The instance presented by a doctor in his paper about permitting drinking wine for an alcoholic by adding a nauseous substance to it in order to make him loath drinking alcohol, the Islamic method, I believe, is not like that. Making something hateful to somebody is attained by two methods; either through a perceptible way, or by explaining effects, results and harms of alcoholic drinks. This is what the Sharia has done when it successfully changed the erroneous attitude of first Muslims from that which had generally been held by the Arabs who considered having alcoholic drink a sign of virtue, civilization and progress.
They used to chant this - there is no poem in Arabic poetry whose author does not chant the praises of alcoholic drinks. Sharia changed this when Allah, sent down the verse
THEY ASK THEE OF WINE AND GAMBLING. SAY THOU: IN BOTH IS A GREAT SIN, AND SOME BENEFITS FOR THEM, BUT THE SIN OF THEM IS GREATER THAN THEIR BENEFIT.
If the perpetrator of crime doesn't have any qualms about doing it, cure is, then, difficult, very difficult. If we could create a hostile psychological attitude towards alcoholic drinks, treatment by a doctor would be possible.
Another example: A man asks a doctor about a female patient - with a certain problem - whether he could marry her. I think the best thing for the doctor is to keep silent. If he says that she is fine and there is nothing wrong with her (falsely), when the man marries her and discovers the defect, he will have cheated him. And if he tells him that she has such and such a thing, he will have disclosed her secret. "Religion is advice". He should not cheat him nor disclose her secret. So he can keep silent and the man can get information from sources other than him and the doctor is not to blame if he assumes this attitude. If the doctor knows that her illness is due to fear of her husband, informing the husband about the cause of the wife's illness is necessary for treatment.
Another example. The informer who uncovers people's secrets then nagging feelings of guilt and uneasiness begin to bear down on him to an extent that it poses a problem. Treatment for such a case, in my opinion, is that the doctor explains to him the Islamic method for spying. Sharia makes it permissible to spy on enemies and criminals, but not on the guiltless. When he is aware of the limits as prescribed by the Sharia and operates within them, the uneasiness he feels will no longer be there.
With respect to a woman who is impregnated by someone other than husband and wants abortion, it is advisable that she does not add another crime to the first one, for this new crime will, in turn, affect her and burden her conscience ever after.
Dr. Ahmad AI-Qadi
It is apparent that the course of discussions of yesterday and today focuses on the two alternatives - the first of which is concealment of secret, which is the basic attitude - and the second is disclosure of it to prevent or avoid ensuing harm. I want to concentrate on a third alternative - i.e. avoidance of resultant harm without disclosing secret. This alternative has been touched on by some fellow - doctors and ulama yesterday and today. Yet I see that some elaboration is needed. The drug addict aircraft-pilot, for example - The third alternative for him, I believe, is to give up the job voluntarily, then prove serious about abstinence from drug under medical help and take up another job. And the patient, who fears that the rest of family will catch his disease, should isolate himself, also voluntarily, from his family. These solutions which belong to the third alternative add another burden to the doctor. Yet, the doctor's responsibil- ity is not restricted to treatment, rather it includes taking the role of a reformer and an educator and may include that of follow up as he must be sure of the commitment of the patient to this volitional third solution. This, in my view, is not a bad thing for responsibility is proportionate to the degree of knowledge, and if the doctor wants or allows himself to have more knowledge by hearing people's secrets, he must, then, bear the consequential responsibility, or else give up this profession which burdens him with additional information that increases his responsibility. I just wanted to focus on this third alternative, namely that our concern be channelled to finding solutions and this requires thinking, observation and following up on the part of doctors.
Dr. Essam Al-Sherbini
Fellow participants, both jurists and doctors, have spared me most of what I intended to say. The big advantage of these symposia and of the previous ones and of those which, if Allah so permits, will follow is that they increase doctors' awareness of juristic and legal matters of the Sharia that are connected with their profession. They also assure them that jurists are knowledgeable about medical details and base their judgment upon them. Yet, new issues will ever keep emerging even after we know the law and are acquainted with jurisprudence. Emergence of new issues and the consequent need for knowing relevant attitudes and legal rulings are not faced only by the doctor, but also by the jurist and the legal man. Therefore, the solution, as Sheikh Badr suggested, is that a standing ad-hoc committee be constituted to refer to in such matters. What I'd like to add is that there is a committee on professional ethics in every medical institution. But it may be active and functioning and may be inactive. Everything that happens in hospitals or clinics is subject to the work of such committees. What I suggest is that these committees become active and effective in every medical institution. It is not important that each of them includes a jurist. It will be enough to have a committee of expert and knowledgeable doctors to refer to in matters brought forward by doctors as well as to keep watch over their work. Those are people of experience in hospitals. Then a juristic committee on the ministerial level is formed for reference in such matters.
Dr. Hassan Hathout
I completely disagree with whoever calls for divesting medical profession of its uniqueness. The codes of ethics of the medical profession had preceded divine legislations. When these legislations came they took and stressed what was good in such codes. I thought that our debate, since yesterday, has been too limited for it has discussed the subject of secret in too general a manner whereas I want to go beyond that to discuss its uniqueness in. the medical profession. I maintain that the medical profession does differ from other professions. Which profession does not accept justice as a supreme ideal? But, if the doctor seeks justice as his goal, he is a failure as a doctor, for doctor's work is not part of Allah's justice but he is only a means of His mercy. The mercy that covers both the benefactor and the malefactor. The object of a judge is to judge and be just, and the object of an officer is to fight enemies, but the object of a doctor is to treat both foes and friends. And if the murderer of my father comes to me for treatment I wouldn't be able not to live up with his expectations and neglect him, whereas if he goes to an architect to have his house built, the architect could apologize, or if he goes to a seller to buy he could also apologize.
Therefore, the medical profession has a special uniqueness and the confidentiality in it is a basic corner which when damaged the whole profession collapses. If we are keen on safeguarding the interest of the nation, then we should regard this interest as a fraction with a numerator and a denominator, the numerator representing combat of crime, reporting an error, prevention of spreading of adultery and so on. The denominator is also essential to the interest of the nation. When people get sick they go to the doctor and if they has the slightest doubt that the doctor is not worthy of being entrusted with secrets, it will mean that the medical profession has forfeited a vital motivating force for its existence. This is the gravest thing; for a nation whose patients are doubtful of its doctors will pay a doublefold price from illnesses patients suffer. The basic element of treatment is that the patient provides me with the truth about his case exactly as though he is talking to himself or confiding something to his Lord. If he does not trust me, he won't tell me the truth and thus I will deprive the nation of much more benefit than he does if he hid anything. Exception however, is possible if this tremendous interest could be surpassed by another more urgent consideration. Here texts are a must, i.e. the cases in which the doctor is permitted to disclose must be enumerated specifically and exhaustively and not just providing some examples. They are to be made known publicly and the patient should be aware before visiting the doctor that such and such are disclosable matters. This must be known to all people. Yet, the original rule remains with its sacredness intact, the sacred value of regarding secrecy.
Dr. Mahdi Ibn Aboud
This is the second time I see the floor given to one who does not request it. I have heard some comments that I'd like to have said, especially in respect of the word "mercy" which I heard from Dr. Hassan Hathout just now. I'd like to indicate two points, point one is that the patient should be treated as being with a body and soul at the same time within a society that has a body and soul. Point two is that "above every knowing one there is a knower" We are talking about the juristic aspect as if jursits' knowledge has become fully consummate and is no more increasable nor decreasable; and we talk about the doctor as though his knowledge has been utterly perfect and become divine, and will not decrease and this impossible for a human. Disclosure of secret is not forbidden in matters of decency only but also in ones that may ruin a person or destroy a pillar of an entire society.
Let us take schizophrenia, for instance. If the doctor diagnoses an illness as schizophrenia and discloses it, it means that he has hastened making the judgement public, thus detrimenting his patient, profession as well as his own standing in the society. Yet, the doctor, if young, may take this hasty action as he is still inexperinced. But if he gains enough knowledge and experience in the field of medicine, especially if he does not confine himself to his speciality for instance, he does not restrict himself to skin diseases in respect of the kind of speciality I call "the superficial division of dermatological medicine", he can perform a risky diagnosis unawares, then some indicators of schizophrenia such as kleptosis which can be treated in a few weeks, appear, then symptoms of schizophrenia, that kleptosis has indicated, appear, then if he is in the habit of not consulting neither other doctors nor jurists and rashly discloses the secret, he will, thus, have done a thing so dangerous first to his profession, secondly to the patient and thirdly to the society. Therefore, the committee suggested by his Eminence Sheikh Badr is one of urgent , imperatives for permanent study of cases and not only for consultation at all times. The doctor at ten in the morning is visited by a patient and he wants to take a decision, he is not to get out and leave the patient in order to go to the committee for consultation. This depends on what is called , good morals of the doctor. First giving priority for secret keeping over disclosure, second mercy is given precedence over decisive, hasty actions and diagnosis will be confirmed or changed.
Dr. Abdulmonem Zain Al-Nahas
It is evident from the detailed memoranda which were presented yesterday that the doctor is, legally and in the Sharia, not bound to disclose patient secret for it is a kind of backbiting. Yet, there are exceptions, which were indicated by his. Eminence Sheikh Tawfiq Al-Wa'i in cases that justify it. Disclosure of patient's secret is for the patient himself, his family and official authorities. When we debated the Law on Proof in Sudan, we reviewed the extent of responsibility of trustees. The Sudanese Law on Proof stipulated in Article 31 that testimony of trustees such as doctors and lawyers shall not be acceptable in respect of information they obtain by virtue of profession except if the one entrusting the secret permits or when the secret is related to committing a crime whether already perpetrated or not. If the doctor knows that a crime has been committed he is legally bound to report it, otherwise if any doctor is summoned by a court to testify or to disclose the secret behind illness of patient, he can invoke this provision and abstain from giving an answer to court out of sacredness of the status of trustees in general, and not for sacredness of confidentiality of medical profession. Lawyers, doctors authorized agents and others, have some immunity because they know something others are not permitted to know. As for the exception on the basis of perpetration of a crime which is stated in the Sudanese Law; when the doctor, like any other citizen, knows about a crime he must report it, if he doesn't report he will be regarded as on who screens a criminal. The provision, in my opinion, is in conformity with the letter of the Kuwaiti Law which stipulates some exceptions in this connection, justifying protection of doctors in general, along with other exceptions referred to in the Kuwaiti Law. I agree with my brother Hassan Hathout that there should be a clear rule and not just a committee to discuss each individual case and according to circumstances. The symposium should make recommendations applicable to the medical profession all over the Islamic and Arab worlds, and by which doctors associations and ministries of health in the Arab and Islamic countries should abide. Existence of such committee means that it will discuss things that mayor may not emerge. But the general rule can be resorted to for help and for guidance in all cases along with the exceptions that justify them.
Dr. Abdulrazzaq Al-Samerra'i
I'd like to refer to some examples. A patient has a deep cut in the back of the eye and vitreous fluid comes out along with bleeding but the front of the eye is sound. The patient has an operation and consequently the outer appearance of the eye is flawless but the eye does not see and the patient asks that his wife is not told. Another patient with a similar case but he has a fiancee and asks that his fiancee is not informed. The relatives of this patient insist on knowing the truth; can they be told, is it permitted or not?
Another example; the aged, whose eyesight gets weak due to cataract which may constitute a temporary impediment. They have driving licences valid for years, in Kuwait for example it is 10 years, from age 59 to 69, the eyesight dropped to 6/36 or less. Such a person should not drive a car, is it possible to inform authorities to withdraw the licence on a temporary basis? Informing is a kind of virtue. Look how Sayyeduna Abu-Bakr behaves when the Prophet, may the blessings and peace of Allah be upon him, tells him a minor secret, and Anas Ibn Malik does the same thing, and all other similar stories can be invoked as persuasive sources but they have not the strength of authenticity of texts. We need to say that the doctor is not permitted to disclose secret, for the patient should not be harmed. The Prophet, says:
"without harming and without mutual harm"
and Allah, says:
AND THOSE WHO ANNOY THE BELIEVING MEN AND THE BELIEVING WOMEN, WITHOUT THEIR EARNING IT, SHALL SURELY BEAR THE GUlLT OF CALUMNY AND MANIFEST SIN
And the Prophet, says:
"The faithful is he whom the people can trust with their lives and property, and a Muslim is the one who avoids harming Muslims with his tongue."
And he says:
"A Muslim is the brother of another Muslim, so he should neither oppress him nor hand him over to an oppressor".
And other prescribed texts to which I'd like we consult in order to learn that medical secret must be kept and that the doctor should not divulge this secret except in certain cases. And as to the other cases where disclosure is permissible, I propose that a committee is constituted to refer to for decision. This is a good thing but still it is not a solution for the everyday problems which confront every doctor every hour. This is not possible. We want to put before the doctor general outlines which he can refer to and consult his conscience when he is faced by such problems. What I figure, after I have heard all our professors, that the cases in which it is permissible to disclose a secret are divided into two divisions and two subdivisions.
Division One:
Prevention of an evil from befalling the society.
Subdivision One:
Prevention of an evil from befalling an individual.
Division Two:
Securing a benefit for the society.
Subdivision Two:
Securing a benefit for an individual.
What I think is that the doctor "must" disclose secrets in cases that come under Division One and Two. But he "may" disclose secrets in the subdivision cases. In cases other than these he "is not" permitted to disclose secrets.
Dr. Yehia Nasser Khawaji
I have something to say about disclosure of secret of the sterile husband's wife: If the doctor finds out that the sterile husband's wife' is pregnant and the husband is a doctor who knows well that he is sterile, if she returned truly penitent to Allah, it is better not to expose her, and the husband either attributes her child to himself if born alive, or disavow paternity. If he attributes the child to himself he becomes his son, and if he disavows him he remains fatherless. Yet, in this case if the husband, who is a doctor and knows he may ask to analyse the child's blood in order to decide whether it matches with his or not, and so how can he attribute the child to himself when he is quite sure that he is not his son and when he also knows that he has been married to this woman for ten or 12 years, and he is a doctor? I say that he is not an ordinary person, he is a doctor and he knows, and he may take his semen the next day and analyses it then knows definitely that he can't produce any children; if this is the case how can he take this child to himself as if it were his son? The choice is his in this case.
The second point is when a colleague of the doctor finds out something done by the latter, he should promptly report the matter to " authorized officials because this is an act that is against honesty and not a private matter that only concerns the perpetrator. So, whoever knows about his affair must report it to superiors and not tell people; only his superiors.
The Third point is when the doctor knows that the father of a family has AIDS for instance, he should inform wife because you cannot be sure of such a patient. You can tell an AIDS patient: Don't touch your wife. But when there is sexual excitement he will sleep with wife and infect her and she is not aware of his disease, and he can't resist his desire. There it is better to inform his wife so that she does not allow him to make love to her until he is cured of his disease.
Chairman
Thank you Dr. Yehia, Now time is over and we still have two speakers.
Dr. Tawfiq Al- Tamimi
One of the causes of our good meeting is, perhaps, the non-existence of a sufficient number of ancient Muslim doctors' tradition in this connection. The reason is that they were jurists besides being doctors. So doctors nowadays need to get together and have discussions about these matters for they have knowledge and are competent to act, when facing these predicaments, armed with knowledge of jurisprudence. I hope this meeting, when it closes, will make recommendations or a booklet for doctors so that it helps them understand juristic specific matters which are connected with medical practice.
The doctor, as he is entrusted with secrets, is also entrusted with the health of the individual, the family and society, and there should not be any contradiction between the two functions. I think that the Sharia embraces all medical practices. The morals derived from the Qur'an are the most perfect. And I don't think that the Qur'an and Sunna will be unable to grasp the significance and necessity of maintaining the confidentiality of profession, and whether it is sacred or not. I think if we stick to Islam we won't be in need of other sacredness outside the purview of the Qur'an and Sunna. There is a necessity to make general rules for doctors to refer to general juristic rules of confidentiality of profession and of other matters are also necessary.
With reference to the subject of confidentiality of profession, there are many governing rules, such as; entrusting with secret, "without harming and without mutual harm", giving priority to public interests over private interest, giving precedence to prevention of evils over obtainment of benefits. "He is not one of us, he who drives a wedge between man and his wife" and "a person should help his brother whether he is an "oppressor or an oppressed". All these things can be of use in explaining the rules that doctors should follow in respect of confidentiality of profession and as regards possibility of disclosing secrets under certain circumstances.
Chairman Dr. Hussain Al-Jazaeri
Thanks for Dr. Tawfiq for this nice "elaboration".
Sheikh Muhammad Mokhtar AI-Salami
The question of sacredness of the medical profession has been raised. Every speech must start with conceptions clearly outlined and they are not to be mixed up. To make sacred is to make holy and free from any worldly elements. When we attribute holiness to Allah, this means that Allah is above anything and the inadmissibility of any imperfection. And if we say that the Qur'an is sacred it means that we negate occurrence of any alteration, distortion or change, by addition or by deletion. If this is the meaning of sacredness, then I don't understand what is meant by "medical profession is sacred" Medical profession is respected and its position in the rank of values is among the highest in view of the fact that its subject is Man, and consequently problems with which medicine is faced and which are presented to the doctor are as complicated as both the science and the profession are. I indicated yesterday that the doctor in some cases may get to a kind of internal contradiction as to whether what he is about to undertake is prohibited or permissible, should he inform or keep silent? Giving general rules is not enough and doesn't help the doctor find the required solution in most cases. Therefore, jurists should provide judgments or, in the light of the cases provided by doctors, undertake the task of giving legal consequences and opinion of the cases that have been presented by doctors. After I said this yesterday I added that new issues keep emerging, so it is necessary that all cases, which raise questions in the doctor's conscience, must be recorded in every hospital or clinic in order to determine the Sharia opinion. This indicates that the question will always be raised a new and our search for an answer might be taken to justify that the profession of medicine is not prohibited for us to interfere with and there is no sacredness. No one can accept that.
Another issue remains: namely the issue of AIDS. I touched on this question yesterday. It is a new issue that brings about new hazards to the degenerated human nature for which a solution will not be found unless it frees itself from immorality and goes back to the path of Allah.
I said that the doctor must tell AIDS patient the truth so that he doesn't donate blood or have sexual relation with wife or even kiss her on the mouth, with respect to reporting the matter to the state I said the case must be recorded in the register of existing diseases that appear in an area monthly.
But as to informing the state of governmental agencies that so-and-so is an AIDS patient in case that there is no existing law which specifies such course of action, this, I think, is not just disclosure it is an unwarranted scandal, for if there is no law that stipulates informing, what will the authorities have to do with such a person? Therefore, disclosure will result in a scandal and will not be useful in treating or protecting society, the doctor is then forbidden to disclose.
Disclosure is bound with public welfare. Finding out after examining him in his clinic, that so-and-so the son of so-and-so is an AIDS patient is not enough reason for the doctor to inform authorities. The government should makes a law that makes it incumbent upon the doctor to report such cases and inform about the person in question in order to take the necessary measures, and in this case the doctor must abide by the law, because everyone must abide by and observe laws that serve public " interests, including the community which is part of public interest without which Allah would not have given us reins of power. But to inform without any justifiable reason is just a kind of scandal and impermissible disclosure.
This is what I meant by saying that AIDS is not to be reported to, concerned authorities when there is no law that stipulates such an action. This is meant to instigate legislators in all Islamic Countries and they should take the initative to protect the nation. This is their duty, and Allah knows best.