© The Author(s) 2015
Mohammed Ali Al-Bar and Hassan Chamsi-PashaContemporary Bioethics10.1007/978-3-319-18428-9_77. Nonmaleficence
(1)
Medical Ethics Center, International Medical Center, Jeddah, Saudi Arabia
(2)
Department of Cardiology, King Fahd Armed Forces Hospital, Jeddah, Saudi Arabia
This is an important obligation in morality and medical ethics (doing no harm). It is associated with the maxim “primum non nocere,” above all do no harm. In Islamic teachings Prophet Muhammad (PBUH) said, “Doing harm and reciprocating harm is not allowed” [1]: “La Dharar wa la Dhirar.”
In Islamic jurisprudence axioms: “Avoiding harm takes precedence over bringing good.” It simply means if a certain action end in both good and harm, then it is preferable first to thwart off harm. However, if the benefit is much greater than the harm, then that action could be applied. Al Izz ibn Abdul Salam (d660H/1262 CE) a renowned Islamic jurist in his book “Qawaeed AlAhkam” “Basics of Rulings” said “The aim of medicine is to preserve health, restore it when it is lost; remove ailment or reduce its effect. To reach that goal it may be essential to accept the lesser harm, in order to ward off a greater harm, or lose a certain benefit to procure a greater one” [2].
He also said, “Medicine in the Sha’riahis regarded as a field that brings the benefits of health and wards off the harms of disease and ailments” [2].
The axioms of warding harm in Islamic jurisprudence are:
(1)
Doing harm and reciprocating harm is not allowed.
(2)
Harm should be warded and avoided as much as possible.
(3)
All that is harmful is prohibited in Sha’riah. That will involve medicines made from porcine material, alcohol, carrion (dead animals) or seeking remedy by amulets, sorcery, and divination. Any mode of treatment that causes harm without any good is not allowed. Similarly if the harm is more than the benefit, or even if the expected harm is equal to the expected good, it is not allowed. However, if the expected benefit is greater than the harm, then it is allowed. If a patient is having a gangrenous foot or limb, and the gangrene might increase and even kill the patient, then it is allowed to amputate the limb. Similarly if a woman is pregnant and continuation of pregnancy is threatening her life, then she is allowed to abort. If the continuation of pregnancy is going to endanger her health, but not her life, or the fetus is grossly malformed, then abortion is allowed prior to ensoulment, i.e., in the first 120 days computed from time of fertilization of the ovum (i.e., conception) which is equivalent to 134 days from last menstrual period (LMP) which is used by obstetricians, and that is equivalent to 19 weeks + 1 day [3]. But it is not allowed to have abortion after that date. Yet it is possible to have preterm delivery, e.g., 36 weeks or even less if deemed necessary.
(4)
If there is certain harm, then it should be removed.
(5)
Harm should not be removed by another harm, which is equivalent to the previous harm; or worse if it is removed and replaced by a worse harm. However, if the harm cannot be removed except by accepting a lesser harm, then the lesser harm is accepted. This follows the next axiom.
(6)
The greater harm could be replaced by a lesser harm. Examples of this in medicine is amputation of a limb, if gangrene is spreading; or accepting to use narcotics to relieve pain, even if morphine and its derivative have a double effect, i.e., the debilitated patient suffering from pain due to metastasis and chronic pulmonary disease where morphine and its derivatives is going to depress the respiratory center in the medulla in the brain stem, and therefore may end in respiratory failure. The serious side effect in such a patient would be accepted if the pain was not relieved except by the narcotic. The dose should be the minimum required to alleviate pain. Muslim jurists in the past brought the case of a man who adopted Islam. He was required to circumcise his prepuce, but if that was going to harm him (there was no proper anesthetic), then he was allowed to pray and do all the required worship of Islam without circumcision.
The balancing of harms is important in Islamic jurisprudence, and if it is impossible to thwart harm, without causing another harm, then the lesser harm should be accepted.
(7)
The prohibited things would be allowed if there is necessity. If a person is lost in the desert and he is thirsty and he finds only alcoholic beverages, e.g., wine, then he is allowed to drink it to quench his thirst. Similarly, if he has no food, and only finds pork or carrion (dead meat), or blood, then he is allowed to eat it to save his life. But he is not allowed to kill another human being (a child or diseased weak person) in order to save his life. He can kill any animal that he finds or even eat the corpse of an animal or, worse, the corpse a human if there is no alternative.
In medicine the same rules may apply. Taking medicine made of porcine material or alcohol or poisonous snakes is allowed if there is no alternative medicament.
Similarly, autopsy and dissection of human bodies would be allowed in
(i)
Coroners’ cases, i.e., medicolegal cases ordered by the magistrate in order to reveal the cause of death or help in identifying the perpetrator
(ii)
To teach anatomy, physiology, and pathology which are needed to bring up physicians and health providers [4].
It is allowed to take an organ from a living donor if such donation is not going to harm the donor seriously. The donor should be adult competent and donating by his free will [5].
If the person is deceased (brain dead), then organs could be taken if he had agreed during his lifetime to donate, or his family has agreed to donate after his death [5]. The consent should be informed and no selling or bargaining is involved. The government can encourage donation by giving medals, free medical services, or even a fixed amount of money. This is still debatable in the West, but it is practiced in Iran and Saudi Arabia [5].
(8)
As long as harm continues, it cannot be ignored. So long as the harmful effect is there, then it should be removed. Whatever system is there that involves harmful effects, then that harm should be removed out of the system. Otherwise the whole system should be changed. If in a certain community all foreigners officially residing in a country are not covered by health insurance or health services, that system should be changed.
(9)
The harm befalling a whole community is worse than the harm falling an individual. The general harm should be warded off first. If the general harm cannot be prevented unless it affects few, then the general harm should be prevented, even if it involves one or few individuals.
(10)
If there are two harms, then the lesser harm could be done if it is impossible to ward off both harms.
(11)
If there are two benefits, then the higher benefit should be obtained, even if it involves losing the lesser one.
(12)
If both harm and benefit are involved, then try to get the benefit and refuse the harm. If that is not possible and the benefit is much greater than the harm, then accept the lesser harm. However, if the harm is equal or even more than the benefit, then refuse the harm even if it means loss of the benefit.
(13)
“Legal permission negates tortious liability,” except in cases of flagrant negligence. These rules have great bearing in medical practice from both the ethical and legal points of view. The law differentiates between crime and tort.
Crime is a legal wrong, the remedy of which is the punishment of the offender at the instance of the state. It can be defined also as a legal wrong that can be followed by criminal proceedings, which result in punishment [6].
Tort is the law of damages; the civil law of liability is not designed to punish anyone, punishment is the function of the criminal law, compensation is the function of civil law (tort) [7].
The Sha’riah combines both the civil law (tort) and the criminal law. An act can be either a civil wrong or a crime, or can be both [8].
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