Fiqh-i Darmān (jurisprudence of treatment)

Written by Ali-Riḍā Ṣāliḥī

• Abstract

Fiqh-i Darmān (Jurisprudence of Treatment) is a book in the field of medical jurisprudence, authored by Muhammad-Ali Qāsimī, that discusses the jurisprudential rules of medical examination and treatment in four chapters and several statements. This book discusses topics such as the examining doctor’s competence and lack of competence, conditions for the permission of the doctor to look at the body of a patient of the opposite gender and touch it, cases where it is necessary to obtain the permission of the patient or their guardian for examination and treatment, the role of medical examinations in proving crimes, whether the doctor is or is not to be held responsible if the patient has not signed an informed consent form, the conditions for permission to treat with prohibited items and through impermissible actions, energy therapy, and the forbiddance of receiving bribe. Fiqh-i Darmān (Jurisprudence of Treatment) has collected information in a library research method and analyzed data and information based on Islamic fundamental and jurisprudential rules with an analytical effort (ijtihadi) method. It infers the issues related to treatment, especially the upcoming issues in the field of medical jurisprudence, in order to clarify the duties of obligees (patients and doctors) in dealing with diseases. Overwriting and quotations without documents is one of the criticisms directed at the Fiqh-i Darmān book.

Brief introduction

Fiqh-i Darmān (Jurisprudence of Treatment) is a book in the field of medical jurisprudence, which discusses topics such as the jurisprudential rule of examination, heterogeneity of the doctor and patient’s genders in examinations and treatments, the role of the patient's or his guardian's consent in examination and treatment, the role of examinations in proving crimes, jurisprudential-legal examination of treatment, treatment of patients with prohibited items and impermissible actions, energy therapy, the use of harmful drugs, and the rules for treatment staff and medical fees . The book Fiqh-i Darmān has been authored by Muhammad-Ali Qāsimī, director of the department of medical jurisprudence at Markaz-i Fiqhī-yi A’immi-yi Aṭḥār (AS). The importance of issues of medical jurisprudence, which faces new issues and questions day by day with rapid developments and new technologies, requires the compilation of books in this field. According to the author, Fiqh-i Darmān has been compiled in response to this need and deals with the issues of jurisprudence of treatment from a jurisprudential point of view in order to determine the duty of doctors, patients and their companions (p. 29). The book Fiqh-i Darmān is one of the first books in the field of medical jurisprudence that has explained, in a comprehensive plan, the statutory and mandatory rulings of the jurisprudence of treatment (p. 34). Fiqh-i Darmān has collected the issues raised in the field of medical jurisprudence, such as the doctor looking at the body of a patient of the opposite sex and touching it, medical fees and treatment with forbidden items, which have long been discussed among jurists, and presents the reasons for each of these issues and, in some cases, adds new instances to them. For example, the use of psychedelic pills is a new issue in the field of treatment with forbidden items that is dealt with in this book. This book also discusses several upcoming issues, such as the role of medical examinations in proving crimes and energy therapy.

Author

Muhammad-Ali Qāsimī has a Ph.D. in Quran and politics from the Al-Mustafa International University and is the director of the department of medical jurisprudence at Markaz-i Fiqhī-yi A’immi-yi Aṭḥār. He finished the general Fiqh and Uṣūl course in seven years at Markaz-i Fiqhī-yi A’immi-yi Aṭḥār (AS). He has authored other books and articles in the field of medical jurisprudence in addition to Fiqh-i Darmān. Dānishnāmi-yi Fiqh-i Pizishkī, Āyāt-i Fiqh-i Pizishkī and Bānk-i Istiftā’āt-i Fiqh-i Pizishkī are among the books he has written . Fiqh-i Pizishkī, Chistī, Chirāyī va Chigūnigī , Kāvush-i Fiqhī dar Mālikīyyat-i Mādar bar Sillūlhā-yi Bunyādī-yi Khūn-i Band-i Nāf are among his articles.

Organization of the book

Fiqh-i Darmān has been compiled in four chapters, several statements and a few appendices. In the first chapter of the book, the author has explained the generalities of the research (explaining the problem, background, necessity, method and research questions) and examined terms such as treatment, examination and screening

Jurisprudential ruling on medical examination

In the second chapter, Muhammad-Ali Qāsimī discusses the jurisprudential ruling on medical examinations in the treatment process within four statements. In the first statement, competence of the examining doctor, the incompetent doctor and examination by students have been investigated. In the second statement, issues such as the doctor’s looking at the body of a patient of the opposite sex, looking at the private parts of other people and touching the body of a non-mahram person by the doctor have been discussed under the title of heterogeneity of the sexes of the doctor and the patient in examination and treatment. The third statement of this chapter deals with the role of the patient’s or his guardian’s permission in the examination and treatment process. and the fourth statement explains the position of medical examinations in proving crimes. This chapter ends with an appendix containing the fatwas of jurists about the doctor, the treatment team and the patient being of the same or different gender.

Jurisprudential-legal examination of treatment

In the third chapter, the legitimacy of treatment, cases of obligation of treatment, doctors’ civil responsibility, responsibilities of competent and incompetent doctors, the verdict for the doctor who refrains from treatment as well as aiding the injured have been explained under the statement on the jurisprudential ruling on treatment. In the second statement, treatment with forbidden items and committing impermissible actions have been investigated; annulling forbiddance because of urgency, treatment with intoxicants, narcotics and psychotropic drugs, jurisprudential ruling on unnecessary (cosmetic) surgeries, energy therapy and hypnosis are among the topics discussed in this section. The ideas of jurists and their responses to questions about treatment, various kinds of informed consent obtained from patients and the fatwas of jurists about energy therapy are among the appendices of this chapter.

Doctors’ and treatment staff’s fees

The final chapter of the book discusses various types of payments to doctors either from the public treasury or by the patient under the topic of doctors’ fees, and investigates the issue of receiving fees for performing obligatory duties, including the practice of medicine. The second statement of this chapter deals with receiving bribe and the reasons for its forbiddance (obtaining property from unlawful ways and breaking one’s oath). The appendix of the fourth chapter presents a collection of the ideas of jurists about doctors’ fees and bribery.

Claims

Competence of the medical examiner, the ruling on medical examination and treatment by students of medicine

Citing a hadith from the Prophet (PBUH) and the rule of guarantee, the author holds the incompetent doctor responsible for the consequences in the examination and treatment process. According to him, because of the principle of the impermissibility of exerting control over others’ life and property without their permission, examination and treatment by medical students is permissible only in cases where the preservation of human beings’ life depends on the education and learning of the students, and it is not permissible otherwise (pp. 62-64).

The permission for a doctor to look at the body of a patient of the opposite sex and touch it in cases of emergency

Citing numerous verses and hadiths, Qāsimī considers it forbidden for a doctor to look at a non-mahram person’s body in normal conditions without special necessity, like the looking of others (pp. 66-67). He believes in the permissibility of a male doctor looking at the hands and faces of non-mahram women and rejects the arguments of those who believe in its forbiddance (p. 90). Regarding the doctor’s look at a patient’s private parts in normal conditions and without necessity, following all jurists, the author considers it to be haram, whether the patient is of the opposite sex or the same sex as the doctor (p. 96). In this book, it is considered haram to touch a non-mahram person’s body under normal conditions, whether in examination or in treatment and surgery; but it is allowed to touch the body of a non-mahram person without the intention of pleasure and from over the clothes or with gloves, because according to hadiths, touching without an intermediate is forbidden (pp. 97-98). Citing hadiths and the fatwas of Shia jurists, the author believes that in cases of necessity and emergency, as well as in case if a doctor of the opposite sex has greater proficiency, many of the rulings indicating impermissibility under normal conditions, become permissible. According to him, emergency is realized when there is no access to a doctor of the same sex and, when practicing medicine for a patient of the opposite sex, doctors should limit themselves to the necessary amount in terms of looking and touching time for examination and treatment (pp. 100-106).

The necessity of obtaining permission from the patients or their guardian for examination and treatment

Regarding permission of patients or their guardians for treatment, the author of Fiqh-i Darmān believes that whether we believe human beings to own their bodies or to only have control over them, medical examination and treatment are possible only with permission of patients themselves or of their guardians (pp. 123-124). According to him, when a person lacks decision making power, like incapacitated persons or minors, the guardian will be responsible for making decisions. However, if it was not possible to obtain permission from the patient or his guardian, as in case of anesthesia, and if treatment is necessary, there will be no need to obtain permission (pp. 126-127).

The effect of medical examinations in increasing the knowledge of the judge

According to Qāsimī, medical examinations and tests cannot be used as evidence to prove crimes and the only effect of these examinations and tests in the criminology process will be to increase the judge’s knowledge, and they will not be useful without attachment to other evidence and indications (p. 175). According to him, the opinion of a legal medicine practitioner will not be independent in legal and criminal matters, and he can only help the judge in the process of proving the sentence as a witness (p. 180).

Liability of the doctor if not obtaining permission

By raising the question as to whether the competent doctor shall be held responsible or not in case of a harm to the patient or his death, the author of Fiqh-i Darmān, by mentioning the ideas of two groups of jurists, believes that if the competent doctor uses all his efforts and attempts at treating and curing the patient in good faith, if he does not obtain the patient’s informed consent about possible harms caused to the patient before the start of the treatment, he shall be responsible about the harms, and only in case of obtaining the informed consent, he will have no responsibility and liability (pp. 218-225).

Permission of treatment with forbidden items

According to Qāsimī, treatment with forbidden items such as intoxicants, narcotics and psychotropic drugs as well as with impermissible actions is forbidden in absolute terms, except when treatment is exclusive to the use of forbidden items (p. 256). Citing the priority of the rule of necessity over the primary rules on prohibition of using forbidden items, as well as the verse on removing hardships, the hadith of the removal and other hadiths, he believes that in case of necessity, no prohibition has been set by the Lawmaker on the use of forbidden items, and eating, drinking and the other actions that are forbidden under normal conditions, shall be halal and permissible in cases of necessity (pp. 247-256).

Permissibility of receiving fees for practicing medicine and forbiddance of receiving bribe

Qāsimī questions the arguments of those who believe in the prohibition of receiving money in return for doing obligatory works, including the practice of medicine, and believes that there is no problem in receiving wages for medicine in all cases of objective, sufficient, recommended, and permissible obligation (pp. 379-404). According to him, it is permissible to receive medical fees even before beginning the treatment process (p. 405). Citing the forbiddance of obtaining wealth through unlawful ways as well as violation of the medical oath, he believes in the forbiddance of receiving bribe by doctors (p. 408).

Methodology

By collecting information in a library research and analyzing data and information based on fundamental and jurisprudential rules in an analytical effort (ijtihadi) method in Fiqh-i Darmān, Mohammad-Ali Qāsimī draws inferences about issues related to treatment, particularly the upcoming issues in the field of medical jurisprudence, to explain duties of obligees (patients and doctors) in dealing with diseases. In this book, he has cited verses of the Quran, hadiths, conduct of the Mutisharri‘ah (Muslim intellectuals), conduct of intellectuals, jurisprudential rules, and the rhetorical and practical principles to prove his claims. In each chapter, the author has discussed ideas, opinions and fatwas of jurists to complete his claims.

Review and evaluation

Overwriting is one of the criticisms directed at the book Fiqh-i Darmān. In this book, written in Persian language, when referring to verses or hadiths, both the Arabic text and the Persian translation are mentioned consecutively, which has increased the volume of the book. This problem is more observable when the text of verses or hadiths is long (p. 98). Excessive lexical discussions and searches for the roots of words are other examples of overwriting. For example, in examining the concept of patient’s consent, the author has dedicated several pages of the book to the study of the concept of consent and the ownership of human beings over themselves (pp. 107-123). The consecutive mention of the common fatwas of jurists is another example of overwriting in this book (pp. 371-372). The author has mentioned the text of several common fatwas in the appendices of the book and sometimes in the main text, while the brief mention of the sense of the fatwas could suffice. Among other criticisms of this book is that it quotes some sayings without providing reference to a specific source. In these cases, the author considers an idea as a basis and rejects or strengthens it without documenting it (p. 82).

References

• Compilation of 323 books in Markaz-i Fiqhī-yi A’immi-yi Aṭhār (AS), Andīshvarān-i Ḥuwzih base
• Qāsimī, Muhammad-Ali, Kāvush-i Fiqhī dar Mālikīyat-i Mādar bar Sillulhā-yi Bunyādī-yi Khūn-i Band-i Nāf, Pajūhihā-yi Fiqhī tā Ijtihād journal, No. 7, 1399 SH/2020 AD
• Ibid, Fiqh-i Pizishkī; Chīstī, Chirāyī va Chigūnigī, Fiqh journal, No. 105, 1400 SH/ 2021 AD
• Ibid, Fiqh-i Darmān, Qom, Markaz-i Fiqhī-yi A’immi-yi Aṭhār (AS), 1395 SH/2016 AD