Jurisprudence of treatment (book)

Jurisprudence of Treatment
Book Information
Main Title	Jurisprudence of Treatment
Other Names	Fiqh-e Darmān
Author	Hossein Ali Montazeri
Subject	Medical Jurisprudence, Treatment Ethics, Islamic Law
Style	Jurisprudential, Analytical
Language	Persian
Main Language	Persian
Volumes	1
Pages	300
Publication Information
Publisher	Nashr-e Ney
Publication Place	Tehran, Iran
Publication Date	2010 (1st Edition)
Printing	1st Edition
Media Type	Print
English Translation
English Name	Jurisprudence of Treatment
Publication Details	Tehran, Nashr-e Ney, 1389 SH (2010)

Author: Alireza Salehi

• Abstract

Jurisprudence of Treatment (in persian: فقه درمان) is a book in the field of medical jurisprudence, authored by Muhammad-Ali Qāsimī, that discusses the Jurisprudential Precepts of medical examination and treatment in four chapters and several statements. This book discusses topics such as the The Attending Physician’s Professional Qualification and lack of Professional Qualification, conditions for the permission of the doctor to look at the body of a patient of the Non-mahram 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, the conditions for permission to treat with Proscribed Substances and through impermissible actions, energy therapy, and the (Quran 4:29). 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 Precepts with an Analytical-Ijtihadic Approach method. It infers the issues related to treatment, especially the Emergent Jurisprudential Issues in the field of medical jurisprudence, in order to clarify the Legal Obligations of the Accountable (Mukallaf) (patients and doctors) in dealing with diseases. Redundancy and Undocumented Citations 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 Proscribed Substances and impermissible actions, energy therapy, the use of harmful drugs, and the rules for Medical Personnel and Medical Honoraria . The book Fiqh-i Darmān has been authored by Muhammad-Ali Qāsimī, director of the Department of Medical Jurisprudence 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 Declaratory and Prescriptive 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 Honoraria and (Quran 5:3), 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 Psychotropic Substances is a new issue in the field of Therapeutics involving Proscribed Substances that is dealt with in this book. This book also discusses several Emergent Jurisprudential 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 of medical jurisprudence at Markaz-i Fiqhī-yi A’immi-yi Aṭḥār. He finished the Advanced Jurisprudence and Legal Theory 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:

• Dānishnāmi-yi Fiqh-i Pizishkī (Encyclopedia of Medical Jurisprudence)
• Āyāt-i Fiqh-i Pizishkī (Jurisprudential Verses Regarding Medicine)
• Bānk-i Istiftā’āt-i Fiqh-i Pizishkī (A Compendium of Medical Jurisprudential Inquiries).

His scholarly articles further explore specialized areas of medical law, including:

• “Medical Jurisprudence: Nature, Rationale, and Methodology” (Fiqh-i Pizishkī; Chistī, Chirāyī va Chigūnigī)
• “A Jurisprudential Inquiry into Maternal Proprietary Rights over Umbilical Cord Blood Hematopoietic Stem Cells” (Kāvush-i Fiqhī dar Mālikīyyat-i Mādar bar Sillūlhā-yi Bunyādī-yi Khūn-i Band-i Nāf).

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 Theoretical Framework of the research (explaining the critique, background, necessity, method and research questions) and examined terms such as treatment, examination and Medical 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 The Attending Physician, 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 Liability, 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, (Quran 5:3) and committing impermissible actions have been investigated; Abrogation of Prohibition because of (Quran 2:173), treatment with Inebriants, narcotics and psychotropic drugs, jurisprudential ruling on Cosmetic surgery, 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 Medical Personnel’s fees

The final chapter of the book discusses various types of payments to doctors either from the The Public Treasury (Bayt al-Mal) 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 (Illicit Enrichment (Akl al-mal bi’l-batil) and Violation of Professional Oaths). The appendix of the fourth chapter presents a collection of the ideas of jurists about doctors’ fees and bribery.

Claims

Professional Qualification 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 Liability (Qāʿidat al-Ḍamān), 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 (Quran 4:29) 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 (Quran 24:30-31) 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 The (Quran 24:31) 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 Direct Skin-to-Skin Contact 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 Superior Clinical Expertise, 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 gaze (Nazar) and physical contact (Lams) 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 Legal Incompetents (Mahjūr) 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 Professional Diligence , 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 Therapeutics involving Proscribed Substances

According to Qāsimī, (Quran 5:3) such as Inebriants, 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 (Quran 22:78), 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 critique 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 Honoraria even before beginning the treatment process (p. 405). Citing the forbiddance of (Quran 2:188) as well as violation of the medical oath, he believes in the (Quran 4:29) by doctors (p. 408).

Methodology

By collecting information in a library research and analyzing data and information based on fundamental and Jurisprudential Precepts in an Analytical-Ijtihadic Approach method in Fiqh-i Darmān, Mohammad-Ali Qāsimī draws inferences about issues related to treatment, particularly the Emergent Jurisprudential Issues in the field of medical jurisprudence, to explain Legal Obligations of the Accountable (Mukallaf) (patients and doctors) in dealing with diseases. In this book, he has cited verses of the Quran, hadiths, The Practice of the Religious Community (Sīrat al-Mutasharriʿah) (Muslim Rational), The Conduct of the Rational (Sīrat al-ʿUqalāʾ), Jurisprudential Precepts, and the Linguistic 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

Redundancy 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 Unnecessary Expansion of Volume of the book. This critique is more observable when the text of verses or hadiths is long (p. 98). Excessive Etymological and Lexical Analysis and searches for the roots of words are other examples of Redundancy. 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 Individual Autonomy (pp. 107-123). The consecutive mention of the Established Fatwas of jurists is another example of Redundancy in this book (pp. 371-372). The author has mentioned the text of several Established Fatwas in the appendices of the book and sometimes in the main text, while the Succinct Synthesis of the fatwas could suffice.

Among other criticisms of this book is that it quotes some sayings without Bibliographic Documentation to a specific source. In these cases, the author considers an idea as a basis and rejects or strengthens it without Substantiating the Claims (p. 82).