Hudud: Do no harm or do less harm?

Dr Faris Marwan via email | .

After 5 years in service, I have come to realize that being a doctor is not about doing no harm. Rather, it is about doing less harm to the patients as we seek to heal and improve their quality of lives.

Atul Gawande, like our Director General of Health, is an endocrine surgeon in Harvard. Also a prolific writer and public health researcher, he wrote few books including Complications: A Surgeon Note on an Imperfect Science. In the book, he had eloquently illustrated how medicine despite being seen as systematic field of knowledge with evidence based practice at its core; harm in the form of tragic errors and near misses did occur as doctors endure enormous uncertainties in their struggle to provide the best care for their patients. Sometimes wrong; never in doubt, as some surgeons put it.

Furthermore, in contrary to popular belief, the phrase ‘first, do no harm’ or primum non nocere does not literally appear in the Hippocratic Oath by Hippocrates (400 B.C) or be it The World Medical Association Declaration of Geneva Physicians’s Oath (1948). It was actually attributed to Thomas Sydenham, the father of English medicine, the English Hippocrates who did not introduce any oath but was recognized for his contribution in medicine and coining the aphorism back in 1860.

Incidentally, it was the same year that Oliver Wendell Homes Sr, an American physician and poet who famously remarked in a lecture to the Massachussetts Medical Society, “If the whole material in medical, as now used, could be sunk to the bottom of the sea, it would be all the better for mankind- and all the worse for the fish”. As he observed, medications and interventions could cause harm to the patients even though most often disguised by the disease.

This implies that to do no harm is impossible for doctors. But, the maxim or axiom serves as a constant reminder of how vulnerable the profession is to harm patients, in the pursuit of patients benefit. Thus, it is very important to put every effort in achieving the highest standard of collective care in everyday practice; considering the vast magnitude of knowledge and skills required to serve the mankind safely.

Consequently, I believe doctors shouldn’t be too naïve in denying responsibility from ensuring safe amputation of hands of criminals just because they shouldn’t do any harm. Given the wisdom, experience and skills they’ve acquired, they should have learned that it is more about doing less harm or do not harm more than succour (primum non plus nocere quam succurrere). Thus, one question arises, which will cause greater harm in execution of punishment to the criminals, doctor’s involvement or doctor’s doing nothing (nihil)?

Back in 2007 after 844 lethal injections were made possible with physicians’ involvement, Atul Gawande had gone at length in discussing the role of doctors in putting convicted criminals to death. Following California court order that necessitate an anesthesiologist to be present and intervene during administration of lethal dose of medication in the death chamber, Gawande argued that it betrays the very nature of the profession and the trust placed by the public. It was his main concern that to allow the court to take over the knowledge and skills of a doctor to execute a criminal is a dangerous perversion. But Gawande himself, despite being in favor of the death penalty, could not provide any solution either as to how the execution should have taken place effectively without a physician’s involvement.

Gawande had the opportunity to interview several doctors who had been involved in administering lethal injection in the United States. Most of them spoke under the condition of anonymity considering most medical associations and human right groups are against them. One of the doctors interviewed was Dr D, who had opposed death penalty since college; but ended up participating in the execution out of obligation to serve the inmates in their dying moments.  

“We, as doctors, are not the ones deciding the fate of this individual,” Dr D argued. “The way I saw it, this is an end-of-life issue, just as with other any other terminal disease. It just happens that it involve a legal process instead of a medical process. When we have a patient who can no longer survive his illness, we as physicians must ensure he has comfort. (A death penalty) patient is no different from a patient dying of cancer— except his cancer is a court order.” Up until that moment, he still opposed the death penalty but his only way out was the abolishment of death penalty, to which he concluded, “but if the people and the government won’t let that happen, and a patient then dies, are you not going to comfort him?”

Back to the orthopedic ward in Malaysia, surgeons made everyday decisions with regard to amputation of limbs because of severe infection or trauma. Despite knowing that the severe infection could have been prevented should the patient seek treatment earlier, get their glucose controlled and live a healthy lifestyle. Deep inside, we also know that the trauma could have been prevented should the alcoholics, mat rempit or hardcore smart phone addict become more rational in their judgments and behaviour. Yet, we shoulder the responsibility; we make the call to amputate affected limbs based on sound clinical judgments. We treat them as patients, as humanely as possible.

So, why is it than when it came to the court that makes the decision, we impose doubts on their judgment? Are doctors better at judging human behavior than the honorable Judges and the whole legal establishment? More importantly for Muslim doctors, this time the punishment is from God himself. Are we, even clinically, any better than God himself to say no to the predestined punishment?

Thus, I believe instead of jumping to a rash decision simply dismissing doctors’ involvement in Sharia Law, it is imperative to analyze the issue from ethical and religious perspective and always look at the bigger picture. We have witnessed many unresolved issues as a result of elaborated polemic in the media.

While doctors are not executioners, they can train executioners. Before, doctors have trained medical assistants in grafting the vessels for coronary artery bypass graft and delivering anesthesia for caesarean sections. Doctors’ professionalism and oaths should not be made a stumbling block to the establishment of justice and peace as promised by Islam.

Of utmost importance is the crucial philosophy of sharia law that it act as deterrent. Prof Dr Adeeba of University of Malaya had accurately pointed out the lack of equality, justice and compassion in this land. But, I must disagree with her for imposing such prerequisite in establishing Sharia. More than 200 years after the introduction of the Royal Charter of Justice by the English, clearly the civil law has miserably failed us. Look at our crime rates and social injustice. Under her sleeve, Prof Dr Adeeba herself has more worrying statistics on sexual delinquencies across all strata of life. Hence, there is no stronger prerequisite as sounder as now to go back to the teaching of Islam which will address inequality and injustice compassionately.

The delay in tabling the motion should be optimized by PAS to get more organized in terms of idea and action. PAS leaders should rise above their internal struggle to be solid and confident in putting forward such an important motion. Both ulama’ and professionals need to get together to grasp the philosophy of Sharia and discuss the technicalities surrounding implementation of the law. PAS should not fade in facing the differences among Pakatan Rakyat by encouraging open debate and dialogue that will generate further understanding. PAS should manage the disparities delicately to prove that Islam truly is a mercy for the world and mankind. In these troubling times, this is not just a question of political struggle; rather more importantly the future of Malaysia is at stake.

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