Abdullah F Akbar 2020 December
The Article will basically explore the potential relationship between the principles of Medical Law and their counterpart of Islamic Law. It is particularly intending to find out the compatible aspects of the principles of these two regimes. This will inspect the rules of Islamic jurisprudence in order to draw the Islamic Medical Provisions that are compatible with the Principles of Medical Law concerning the main branches in Medical Law. This Comparison aims to discover the overlapping characteristics of these two different regimes to find out to what extend the rules of the principles of Medical Law, which is dealing specifically with the legal matters related to medical fields, would be complying with the rules of Islamic Law and thus; resulted in having a new approach that could be named: Islamic Medical Law. That is because Interpretation of legal provisions from one legal system to other could possibly clarify the compatibility between them, especially when they are sharing the same goals and purposes. Indeed, many regulations and laws intersect across the same points of interests in many circumstances. This can be obviously seen in Medical Law which is consisting of many different branches of laws including but not excluding: Criminal Law, Human Rights law, Tort law, Contract law, Property Law, Family Law and Public Law. Similarly, the principles of Medical Law can comparatively intersect with the principles of Islamic Law at many common points and sharing the same goals and purposes in many aspects .
In my opinion, the compatibility exists in the conception of both Medical Law and Islamic Law, however, the question is the one of how we can deeply contemplate the rules of these laws that are being drafted variably depending on the nature as well as the purposes of each law, and then to formulate these rules, which are compatible to each other, in a new regime. In order to set up the study targeted points, I consciously would like to establish a deep investigation for Medical Law principles that are based primarily on the conception of legal right and responsibilities of both patient and Medical care providers. That is to say: the duties of medical professions and the rights of patients are the principles governing the rules of Medical Law. Based on this principles, the Medical Law can be divided into three main branches : confidentiality, negligence and torts which is related to Medical treatment and the criminal law. Those are the most common areas in relation to Medical Legal issues. There are some matters concerning ethics in medical law can also be partly handled in my research.
It is important to refer to the main aspects of Islamic Law in order to present a valuable study in comparing the principles relating to this topical and increasingly controversial area of the law (the Medical Law) comprising extracts from many different laws. As such, when we review the
principles of The Islamic Law which can be described as a comprehensive legislation that is dealing with matters involved crime, human right, tort, contract, family, civil and public laws in addition to many ethical and humanitarian aspects, however, we could see clearly how the key principles in the modern medical law, which are the rights and duties, entirely consistent with the key principles of Islamic law, which is also concerned with the rights and duties of human being toward themselves and their creator. In comparison, it could be argued that the conception of the principles of Medical Law, which is the duties and the rights for both Medical professions and patients, might be applied on the principles of Islamic Law, but how this could be done?. The better way in proving this compatibility could be achieved by exploring the rules of Islamic Law within the scope of the main three areas of medical law. This inductive method capable of finding out whether or not it is possible to apply such rules under Islamic Law.
Regarding the confidentiality, which is the one of the main branches concerned by Medical Law. it deals with who has the right to access the patient's records and health information. It is the branch of the law includes the extent to which patient records are kept confidential, when and how medical professionals maybe allowed to share information, and which sorts of circumstances constitute a breach of confidentiality. Similarly, the Islamic Law Principles consisting the same approach in which the human being has their own respected right that any special information must be kept confidential. It is commonly known in Islam as (erd al muslim) the sanctity of the Human being, and that no one has the right to follow the news of any person or to disclose any secret information for any human being unless that he or she has the right to do so. This conception has been extensively mentioned in the main provisions of Islamic Law and set rules and limits for circumstances in which that information can be disclosed in public. For example. The one seek a marriage and would like to know special information to be sure that he has a perfect match , or if someone carries on suspicious acts and cause harm to the community, then we have the right to disclose that information. As regards the Medical confidentiality, Recent issues have concerned matters arising from the advent of HIV, in relation to infected patients and infected healthcare workers and access to information by patients about themselves or other, this cases also can be argued under the principles of Islamic Law.
Another important aspect under Medical Law is the negligence which is also the one of the main branches of Medical Law, it is a common reason for suing doctors on account of Medical Malpractice and establishing litigation by injured patients. The Medical negligence can either be accidental or deliberate, it also may happen while the doctor was in his “duty to care” or while he was not, and if he was in his “duty care” did he fail to deliver acceptable standers or care or he did not? Investigating those matters will specify whether or not the doctor found to be guilty and whether or not the patient is entitled to claim compensations for damages, and what is the equal amount of the compensations to be paid for that damages or loss. Accordingly, The final decision, to determine the responsibility and the amount of the compensation, is invoked by the rules of law governing the geographical area in which the negligence has occurred.
On the other hand, the same scenario is going to be happened under Islamic Law to investigate the same event in the same way using the principles of the Modern Medical Law until the stage of estimating the compensations and the final decision which has been clearly specified by the legislation of Islamic Law. The Medical negligence causing the damages or loss in the organs or life of human being and their compensations have been specifically mentioned in the main provisions of the legislation of Islamic Law, thus, those rules would never be changed and would never be invoked to the estimations of the judges. It is the branch under the jurisprudence of Islamic law concerning those issues in relation to the amount of compensations for the loss or damages for every single organs, life, blood, and money of the human being, and that rules, of course, have been extracted from the provisions of the main sources of Islamic Law.
I remember when I was doing my Bachelors Degree in Judicature that we were studying Warranty theory under the legislation of Islamic Law. The course was concerning the matters of warranty in variety types of treatments between human being including: financial, contractual Medical, criminal and even civil matters, this warranties are referring to the provisions of Islamic Law in order to determine those circumstances and the types of breach or torts, as it commonly called in torts law, in which warranties to be applied and to determine the amount of the compensations to be paid for the breaches or damages committed. As we mentioned above, there are a clear specifications for every single damages or loss and their compensations, those rules have been derived from the jurisprudence system of Islamic Law which، in turn, has also been derived from the main sources of Islamic Law. Indeed, The importance of downloading such special provisions of Islamic law on the principles used in medical law lies in adapting the final legal judgment of a medical problem while it is been considering before the Islamic Sharia courts as a legal medical case. The Islamic Judges will absolutely apply the rules of Islamic Law on that Medical Legal problem, and there is no doubt that describing this medical issue from the perspective of Islamic Law will better allow Islamic Legal professionals to deal with it.
Additionally, the euthanasia is the one of the most debatable ethical aspects in relation to the Medical Law. It is prohibited under many Laws and legislations including Islamic Law. Islamic Law prohibited this Act under any circumstances even if it is been requested by the patients or the person seeking the death. And this depending on the provisions of the main sources in Islamic Law justifying that the only one who has the right of death is the one who gave the life which is the god. The reasons of the prohibition differ from law to other, however, the goal is unified. It is the example of how some rules of the Medical Law comply with their counterpart of the Islamic Law irrespective of the justification of each. It is impossible that the rules of two different laws found to be completely overlapping on the same aspects, however, matching between some of the similar aspects is the task of the academic researchers. In addition, The End of life legal issues are also one of the most arguable issues concerned by Medical Law, well also it is important in Islamic Law. Although, the end of life as a Medical Issue is conducting according to the Modern Medical procedures, however, it is eventually invoked by the rules of Islamic Law. This can be noticed by looking at the attached document of the procedures of the End of life at Al-Noor Specialist Hospital where I work. There are also some documents concerning the patients consent and the procedures for surgical operations according to modern Medicine, all are to be conducted according to the Islamic Law.
Therefore, my study will draw largely upon the recent issues in Modern Medical Law comparing to its counterpart of Islamic Law under both the Islamic legislation as well as Medical Law to seeks not only to analyze and critique the compatible points , but to devise, pursue and achieve reform to address the Medical Legal problems in the real Islamic world. I believe the most important thing to be mentioned in my proposal which also could be the indirect target of my research is that of how to better understand the Medical legal problems. Why I am trying to find the aspects of compatibility between the principles of Medical Law and their counterpart of Islamic Law? What gives me full confidence in my ability to take up this topic in-depth study?! Because in my opinion and from my experience during practicing law as a trainee lawyer in the past and as a legal consultant currently, I recognized that many Lawyers and judges as well as legal advisors have no understanding of specific sciences when those things come to deal with legal problems, it is not for lawyers or judges to study the rules and regulations of laws in a purely legal path without having a grasp of knowledge of what they are dealing with. is it medicine? What is the medicine then? I decided when I came to Ireland that if I would like to establish a new study, I must then understand what I am going to deal with. Studying Basic Medical Foundation Course with Medical DR gave me a pure understanding of the field I targeted in my study. In addition to my undergraduate study of the judicature of the Islamic Law, I feel my self confident in dealing with this type of study.
Research Methodology
This research will be carried out through the comparison between the principles of both medical law and islamic law exploring the relevant issues in the most common books and resources in this field. So this will be a critical doctrinal analysis and comparative approach. the first part of my research will be library based and will include further reading in the principles of Medical Law and exploring their relevant rules under Islamic Law. I have to visit some libraries such as King Fahad National Library in Riyadh region in Saudi Arabia as well as some general libraries for gathering the information of the study. I propose that my empirical work be seen as a form of consciousness- raising, which “offers a means of testing the validity of accepted Medical legal principles under Islamic Law through the lens of the personal experience for those directly involved by those fields.”I also will attempt to gain information from The main place of my job where I work as a legal consultant in Al-Noor Spicialist Hospital in Makkah Saudi Arabia as this will also be the source of some medical legal cases and medical information in relation to my study. I may also visit general courts in Saudi Arabia with regards the cases of Medical Litigation. The frame time of achieving this work can be distributed on three years up to four years. The plan is to be discussed with supervisor later.
Summery and Contribution to the Field.
In summery, it can be seen that the possibility of finding similar aspects of compatibility between the principles of Medical Law and their counterpart of Islamic Law might be potential. The result could be new regime named: Islamic Medical Law. In my opinion this would certainly facilitate the procedures of Medical Litigation not only under the Islamic judicial system of the Kingdom of Saudi Arabia but also under many judicial systems that follow the rules of Islamic Law. Because, once the rules of Modern Medical Law interpreted and adapted with their counterpart in Islamic Law, the legal Muslims practitioners in the world generally and in Saudi Arabia particularly, including lawyers, judges and legal consultants can easily deal with such matters while they are understanding the language of Medical Law. In my opinion, Modern Medical Law, in its natural environment at west regions where the modern medicine exist , has been adopted according to the needs that recognized in medical field by Medical practitioners and Health care providers as well as patients. Those rules in the principles of Medical Law must be studied and interpreted in order to be adopted under the Islamic Law. I have chosen to examine the compatibility of these principles from the perspectives of Islamic Law due to concern with recent proposals to such debates.
There is consensus amongst the academic contributors that this study is often beneficial and. That Medical practitioners are not paying enough attention to the background rules and conditions of Islamic Law, and the resulting distributional consequences of the laws that have emerged from. there is a lack of engagement with the issue of what is the opinion of Islamic Law regarding some controversial matters in the Modern Medical Law such as euthanasia, reproductive technology and sterilisation of non-competent patients and so on. There is no doubt that this approach has to be examined through out the proceedings of this work, and to be improved in a further study. Nor my opinion or my methods are the best, Taking into account the factor of time and effort over a short period which limiting my ability to provide the full planning of the research in an inclusive form. However, this would not be the end of the debate.
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