Islamset - The doctor between disclosure and withholding

Medical Jurisprudence
Third Symposium
on

"The Islamic Vision of Some Medical Practices"
Held from 18-21 April, 1987 A.D.

THE DOCTOR BETWEEN DISCLOSURE
AND WITHHOLDING

His Eminence Sheikh Muhammad
Al-Mokhtar Al-Salami
Mufti of The Tunisian Republic

Whatever the nature of work or domain of human activity in which he exerts an effort, the Muslim finds himself duly taken care of, and the path to follow carefully defined for him by Divine Legislation through expounding what is impermissible for, enjoined on or allowed to him. This is honor given to Man, for the Lord of the Universe in His Divine providence has by no means brought him into being purposelessly; rather He has paved the way for him to elevate and purify himself, and, most sagaciously, reconciled between his entity as an individual and social life in a way that enables him to succeed as a viceroy in the universe and populator of the Earth.

The more noble and respectable man's work is, the greater his responsibility becomes, and, consequently, the more perfect is the accuracy in assessing his acts. Hence, the provisions that govern the

individual when dealing with the earth and inanimate objects number less than those governing him in relation to animals, and the latter, in turn, are not comparable with those determing his actions when related to man.

Since medicine is concerned with man's body and his physical and psychological equilibrium, with the aim of having it protected from, preserved and defended against whatever imbalances that may befall, the responsibility of the doctor is consequently intricate, exactly as his work is, especially when bearing in mind the fact that he has access, by virtue of the profession, to what anyone else does not. Private parts and/or weak spots of whoever is physically or psychologically examined are exclusively revealed to him, and secrets kept concealed in the inner recesses of selves or under shielding, clothes are disintened before him. Particularly as far as the psychological aspect is concerned, muftis and lawyers have the same access as doctors. This includes many spheres and various shapes; and, I believe, it is advisable that doctors keep a record in every clinic or hospital to have the problems they are counselled about duly registered for the purpose of study, thus enriching Islamic Jurisprudence on the one hand and widening the scope of religiously acceptable solutions that are brought forward and which might help relieve the doctor of a nagging issue or of uneasiness of conscience on the other.

The blessed meeting of ours is, I hope, a first step to be followed by more efforts on both the individual and collective levels. The State of Kuwait is most appreciatedly and admirably felicitated on ever taking the initiative in every matter. And an unaffected appreciation and renewed reverence are due to those erudite selection of doctors in this noble country, who honour the Pan-Arab and Islamic Nation; being unsatisfied by the success scored in scientific fields, they endeavoured to find clear-cut answers for the intricate predicaments that haunt the believer's scrupulous and living conscience.

The Doctor and Examination

A strong innate instinct in man, that represents the corner stone in what mankind has so far attained of scientific achievement, is the instinct of curiosity. Many an opportunity are given to man to probe the unknown either through sense or thought. The more related the challenge is to a masked secret, the stronger the intrinsic will power to tear off those knowledge-barring masks. Both civil education and religion enlightment regulate this instinct, in its unchecked form for serving the well being of man and, at the same time, to appease his avidity without harming others.

Yet, the religious criterion, in this connection, differs from the civil, in that the latter restricts the right to revelation of secrets only to desire of the owner, so, if such right is waived, then the senses of the party informed are at liberty to expire whatever he wishes to know, be it the self's latent depths or the body's private parts. But, according to the Islamic criterion the rights of the one to whom a secret belongs are confined to what is permitted by the Sharia. Hence, it is not permissible for a Muslim doctor to go beyond the part in need of examination just for the sake of satisfying a certain desire that is not really justifiable by what the examination requires for diagnosing the illness and prescribing treatment.

Yet, making a clear-cut definition for each of such cases is not practically possible. It is, therefore, imperative to control this all-embracing rule which represents a delicate balancing between scientific requirement to diagnose illnesses and the parts and circles to be viewed or the private secrets to be uncovered. Anything beyond that should not be unveiled by the doctor nor should he try to elicit from the one he examines any private secrets. If, for instance, a sinning girl asks the doctor to examine her to see whether she is pregnant or not; any questions asked by the doctor in excess of what is professionally needed, in order to know, say, her lover, the extent of her love for him, the number of times they had coitus or the place where they did so, and such questions that are not essential to determine pregnancy would be a kind of spying that is prohibited by Allah, as it is stated in Surat Alhujurat (Appointments) AND ESPY NOT.

The prohibited spying is the act of searching for what is withheld from you. Qurtubi related on the authority of Abdulrahman Ibn Oaf, may Allah be pleased with him, "One night I went out with Omar Ibn Al-Khattab, may Allah be pleased with him, touring Al-Madina when we sighted a lamplight in a house whose facing door shut off some people with loud voices and clamour. "This is the house of Rabi'a Ibn Umayya, Ibn Khalaf, and they are now drinking; what do you think?" Asked Omar, may Allah be pleased with him, I said I think we have done what is prohibited by Allah; He said, highly glorified be He, (And espy not), but we have spied, upon which Omar turned away and left them".

Omar was responsible for good statesmanship and for enforcing Allah's Law : hence he thought of exploring what was going on in that house when the clamorous and discordant voices made him doubt. Yet, Abdulrahman Ibn Oaf reminded him of the above verse and of the fact that Allah had not assigned him to hunt down other people's secrets at their very door steps; rather He entrusted him with the responsibility of letting the word of Allah have the upper hand in governing the Muslim Nation and an over stepper was he if he did so in something secret. So, he did not break the contract in accordance with which the community had agreed to live, nor did he offend anyone. The doctor, likewise, is not permitted to uncover the bosom, breasts or the back unwarantedly. Rather, he should demand of the immoral female patient to respect him and not to uncover what he should not see. Indecisiveness in this matter has, in many cases, caused ruin for some families, led to estrangement of spouses, rampant acts of adultery and many a social scandal.

The Doctor, Treatment And Information

The issues, conditions and cases that come to doctors do greatly differ. Some, however, are simple in respect of diagnosis, treatment and judgement of Islam, and some are intricate as far as professional fundamentals are concerned, wherein I have nothing to say except that the doctor is to blame. If he fails to do his duty; or, perhaps, in so much as the doctor's peace of mind is concerned as whether what he is doing will please Allah or arouse His wrath. The issue may be complicated to the extent that the good and the evil and matters prohibited and those permitted become mixed up.

The point is not just connected with man's profession, so that we could say "So, whoever saves himself from these suspicious things saves his religion and his honour", but it is far more delicate; it reflects the relation between a human being in an unsound condition asking for the help of one who, if Allah so will, is able to restore his soundness. Moreover, one or more parties are offended in this. It is not possible, therefore, to draw up an automatically applicable rule for some issues; rather each issue should be separately studied along with similar cases.

Sex Issues

Sex issues might be the most intricate ones by which the Muslim doctor is tried as a human being whilst he uncovers what is not usually uncovered except by husbands. And since it is the right of either party of a married couple to really know the other, and the doctor is the one to whom the truth is revealed, and, yet, is requested by the party examined not to disclose it to the other spouse, the attitude of a doctor, who is endowed with a scrupulous conscience and a good faithful soul turns oitical with nagging questions haunting their good inner depths so that interests conflicts whenever subjected to discretion. The fundamental rule is, perhaps, that the doctor should not impart to any one whatever information he obtains by virtue of the profession.

The reference for this rule is the Hadith related by Muslim on the authority of Abu Said Al-Khudri that the Messenger of Allah, may Allah's blessings and peace by upon him, said:

"The most wicked among the people in the eye of Allah on the day of Judgement is the man who goes to his wife and she comes to him, and then he divulges their secret".

(IKMAL AL-IKMAL VOL. 4, P. 62).

Ahmad and Abu-Dawud related,

"The most important of the trusts in the sight of Allah on the Day of Judgement is .......

(Vol. 3, P. 69).

1. Virginity Problems:

A girl loses her virginity or is born without a hymen, then she and her family ask the doctor to perform hymenorrhaphy and make the hymen seem intact for whoever will marry her; should the doctor undertake such an operation to save the girl's honour, preserve her future from being ruined and, eventually, prevent telltale talk within the family? or should he refrain from doing so in order not to take part in cheating her would-be husband on the grounds that he has chosen to marry a virgin, and the one so chooses should, justifiably, be respected in his choice and not defrauded.

Jurists Standpoint

Jurists see that if a man marries a virgin then discovers that her hymen is lost this is deemed a defect entitling husband to repudiate marriage and take back the sum of money settled upon the wife "Mahr". Ibn Asem says: And should the husband not find her maiden he is not to repudiate save by stipulating a virgin so long as her hymen has been removed by coitus kept secret, repudiation is permissible.

Here he is following the technical differentiation in his time between maiden "bikr" and virgin "azra": "Maiden is a female who has not yet entered into a contract of marriage, whereas virgin is the one who has the seal of her Lord", i.e. hymen, intact. The ruling on the above case is maintained if the woman admits her husband's claim, but if she denies 'he owes her nothing' Ibn Arafa was quoted 'save to ask an oath of condemnation to be taken by her, if she is responsible for herself, or by her father if she is in his custody'. 'She is not to be examined by women, nor should a freeborn be uncovered in such a case' maintained Ibn Habib (Mayyara, Vol. 1, p. 215).

Al-Tawdi says. "The opinion maintained by Sahnoun, in other than "Al-Mudawana", that "she can be examined by women at command of the ruler has been followed". This is, also, the opinion adopted by Abuhanifa: that one woman or two better examine her rather than she urinates against a wall, or the smallest egg be inserted into her vulva" Ibn Abdeen, Vol. 2, p. 596.

Al Qabsi contends that non-existence of hymen does not justify repudiation, for it is removable by means of sexual intercourse as well as by other factors. In his "Nawazil" Ibn Hilal enumerated five causes that can lead to disappearance of hymen "A young girl might become deflowered owing to five factors; either by a leap, lifting a heavy thing, riding an unsaddled donkey, falling off a wall or a tree and the like, or by being born in Muharram."

This question is contained in "Sharh Al-Wadiha". Unquote. (Al- Mahdi's annotation - Book 16, p. 4, vol. 2). "Hymen may be lost on account of repeated menstruation" Mayyara further suggested.

The opinion widely acceptable and known is that if husband makes virginity a condition, or if he does with his wife what is usually done with virgins have a brush with her and does not find her virgin, he is then entitled to repudiate marriage and take back the "mahr" if he finds her not virgin, whether he hymen was lost owing to fornication or due to another factor, for it is a right related to a legitimate purpose and for acquisition of which money has been expended.

Here jurists ascertain that should the husband find her not virgin he is not to accuse her of fornication, for such an accusation is punishable by what is stipulated in the Qur'an. If he says, I have found her deflowered", the provision for slander is then applicable to him. They have also urged the one in charge of the girl whose hymen has been lost without sexual intercourse to have a document made which will help free her, as well as her family, of a future disgrace. Mayyara says "In this connection I have come across a document handwritten by Al-Hassen Ibn Othman Ibn Attiya Al-Tijani, known as Al-Wansharisi, with its edges time-worn. The part that escaped damage ran as follows: "This instrument is a safeguard against misgivings that may arise around so-and-so, the little daughter of so-and-so is in charge of her and her legal administrator, know that she has fallen victim to the inexorable fate. She was walking like young boys do and playing the manner her young playmates did and whilst doing so she fell on a piece of rock that hit her womb causing her hymen to be lost. And I, the undersigned after giving the date, know that she is too young to attract men sexually. So, her minority is sufficient evidence to repel any suspicion.

Hence, whoever intends to marry her should do so in good spirits, with his mind set at rest, assured that he will unveil the shield that has never been lifted to satiate a desire, and that she is a pure virgin whom before him hath been deflowered by neither man nor jinn. He who testifies to the contents of this document truly knows the minority of the girl in question" (Mayara's commentary vol. 1 p. 216).

Legal Consequence for a Doctor Performing Hymenorrhaphy

It might be deemed acceptable in my opinion that for the girl who loses her virginity at an early age so that the doctor can definitely say that the cause is not sexual intercourse for she was not capable of that, only in this case he is permitted to perform hymenorrhaphy. Still, in any other case he is not to undertake such an operation, except in the presence of the husband and when the latter so wishes, for the right is his. And in any case whether he performs hymenorrhaphy or not, it is prohibited for him to divulge what he has learned by virtue of profession.

2. Sterility:

If the doctor knows, on examining a husband, beyond any doubt that he is definitely incurably sterile, then is, later on visited by the wife accompanied by her husband and discovers that she is pregnant; should he tell the husband that he has definitely no hand in that gestation?

Jurists have dealt with this matter and unanimously agreed that sterility is not necessarily a sufficient reason for repudiating fatherhood of foetus. Hanafites have adopted, even more an extreme attitude.

In "Al-Dur Al-Mukhtar" it is written "..and they deemed it sufficient proof of cohabitation without consummation the marriage of a man in the West to a woman in the East, and though they are separated by a distance that is covered in a year, she gives birth only after six months of marriage, Vol. 2. p. 630. " It is also mentioned that "Attribution of kinship is based on what is not known in order to avoid contradiction" Vol. 4, p. 444.

Therefore, the doctor should not raise the husband's doubts, nor should he accuse the woman. Were Islamic penal codes applied nowadays, the ruler would be obliged to have the doubt-raising doctor flogged eighty lashes, declare him as legally ineligible and deem his testimony rejected in exoneration of the woman and so as to preserve the matrimonial bond.

The indisputably inrefutable basis for this is the Hadith related by the "Sahihists" here by Al-Bukhari : On the authority of Urwa Ibn Al-Zubair, narrated, Aisha, may Allah be pleased with her,

"Utba Ibn Abi Waqqas took firm promise from his brother Saad Ibn Abi Waqqas to take the son of the slave-girl of Zam'a into his custody as he was his (i.e. Utba's) son". "In the year of the conquest (of Mecca) Saad Ibn Abi Waqqas took him, and said that he was his brother's son, and his brother took a promise from him to that effect. "Abd Ibn Zam'a got up and said, 'He is my brother and the son of the slave-girl of my father and was born on my father's bed." Allah's Messenger, may the blessings and peace of Allah be upon him, said, "The boy is for you, O Abd Ibn Zam'a " Then the Prophet, may the blessings & peace of Allah be upon him, said., "the son is for the bed (i.e. the man on whose bed he was born) and stones (disappointment and deprivation) for the one who has done illegal sexual intercourse. " The Prophet told his wife Souda bint Zam'a to screen herself from that boy as he noticed a similarity between the boy and Utba. So, the boy did not see her till he died".

(Fathulbari Vol. 5, p. 197).

So, whenever a child is born to a husband whilst marriage is still binding, the child is attributed to him, and the kinship is never repudiated unless the husband takes the lian oath, i.e. disavowal of paternity by mutual oath of both spouses in accordance with the prescribed conditions and rules, or if witnesses to an act of adultery were provided according to fundamentals within which testimony is acceptable.

Pre-engagement Examination

If the engaged couple go to a doctor in order to have themselves medically checked up to know whether they physically match and marriage will not result in deformed or retarded children, then the examination shows they do not match; should the injured party be informed, or does professional confidentiality oblige him not to disclose results of the examination?

The doctor should, undoubtedly, reveal the ill fact he has discovered, for the couple have come to see him about the family they are going to raise, which is their main object, and whether it will be a healthy one. Al-Qurtubi says "Backbiting is permissible if speaking about one in ill terms, will serve a good purpose; as when the Prophet, may Allah's blessings and peace be upon him, told Fatima Bint Clais when she sought his counsel about Mu'awiya and Abu'Jahm Ibn Huthaifa who had both sent proposal of marriage.

"As for Mu 'awiya, he is a poor man, having no property, and as for Abu-Jahm, he does not put down his staff from his shoulder (i.e. he was in the habbit of beating women)".

(Ahkam Al-Qur'an Vol. 16, p. 340).

The Messenger of Allah, may Allah's blessings and peace be upon him, knowing the standing of Fatima bint Qais,

"She had beauty, brains and integrity of character and what proves her social position is the fact that, the Shura men, when Omar Ibn Al-Khattab, may Allah be pleased with him, was assassinated, held a meeting in her house"

(Al-Istiy'ab Vol. 4, p. 383) acquainted her with shortcomings of those who proposed to marry her. "And the Messenger of Allah ever sets good examples to follow for him who hopeth in Allah and the last Day". But, suppose the party who was proven to be sound accepted the other who was defective and the doctor is sure that defectiveness of progeny is highly propable; should he in this case report the matter to the authorities? What I can safely maintain is that it is not permissible for him to do so except if the applicable legislation provides for such reporting; and if the matter is so, I would like to put forward an opinion for jurists to consider the doctor must inform the person in authority, because such legislation is not detrimental to a lawful interest, is not in contradiction with proven prescribed texts, and does serve a common interest.

Hippie Disease - or AIDS

This deadly disease, which increasingly threatens mankind through destroying immunity of the body, is a result of immoral sexual relations. It spreads by means of blood transfusion when the blood of a carrier is given a patient free from the disease, or by sexual intercourse or through the mouth. It is one of a few diseases for which medicine has not yet found either a vaccine or a decisively curing drug. Professor Lock Montaigne, discoverer of the virus, who managed to separate it in January, 1983 and, at first, named it Lymphopathy Associated Virus (LAV), then Human Immuniodeficiency virus 9HIVO, ascertains that so far there is no treatment that can cure the disease, and all that could be done is to delay its effect on the patient's life.

This disease is divided into two stages:

The first is when the human body is invaded by the virus. At this stage testing shows Positive results, whereas the painful fact is that the disease is there, but with no symptoms or signs. Medicine is still looking, so far unsuccessfully, for a way to ensure that the attack does not develop into quite a tractable disease.

The second stage begins when the virus dominates the victim's body and starts to rip the cells, thus depriving the patient of vital immunity.

Now, should the doctor, upon detecting the disease at any of the two stages, tell the patient the truth? Second, should he tell the husband when his wife is afflicted with the disease, and vice versa? Should he inform the local authorities? Third, I think the doctor is entitled, it is even his duty, to inform the patient so that he can be aware of the hazard he causes when donating blood or having sex with a healthy person, man or woman. He should also tell the patient's spouse about his or her condition. Informing authorities is effected in either of two manners : First reporting the case without disclosing the patient's name - and this must be done so that the state can draw plans on the basis of data provided by doctors and treatment and analysis centres, especially that this disease has never been taken into account when drawing previous plans, and that it ever keeps spreading the proliferating leaving horror and dismay in its wake. A report, issued on January 31, 1987, by World Health Organization stated that the number of AIDS patients in the world amounts to 39144, and the number of those whose bodies host the virus, i.e., carriers, ranges from five to ten millions, and that the rate at which the disease kept spreading during the last months calls for panic. In the European Economic Community the rate doubles every nine months.

As for informing authorities about the name of the patient, and having his civil status registered, without there being a binding rule for that, here I see no reason for the doctor to disclose the secret. However, the patient should, on no account, be accused of adultery or of being a homosexual, for the virus may transfer by means of intravenous injection, contaminated hypodermics or by any other means not yet discovered.

Cancer

Cancer is a malignant disease that plays havoc with cells and negatively affects growth and reproduction, and though doctors are striving to overcome it, day by day, spreading the disease is assessed according to the level it has developed inside the body; it might not have developed to the extent of being out of control. If detected at this stage, it is curable; yet, recurrence of the disease remains possible. Informing the patient with the truth depends on whether he relies on Allah and has confidence in Him, and whether his love for life is not so fervent to the point of being panic - stricken when his life is threatened. If that is the case, then, there is no objection to informing him about the nature of his condition so that he can accordingly plan for his future. But if he is weak-willed and cowardly and is likely to have a nervous breakdown if informed, then he should definitely not be told. Medical schools, to the best of my knowledge, have been following two courses of action; the French school does not disclose the disease to the patient whereas the American faces him with the fact. What I was told might be wrong; so I recount it with full reserve. Whatever the case is, there seems to be no reason why the doctor should not tell the patient about his health condition and the risks of deterionation of the disease, whenever he is psychologically normal and has no weaknesses, though I am confident that what is provided by doctors of data about the effect of disclosure and withholding is deemed one of the important pillars in formulating the legal consequence of Sharia, and Allah knows best.