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In Malaysia while there are guidelines for medical ethics there seems to be no clear philosophy for bioethics. Medical ethics are narrower in their application and are more related to moral issues associated with the practice of medicine. Bioethics on the other hand covers a much wider field and is concerned with the ethical questions that arise in the relationships among life sciences, biotechnology, medicine, politics, law, philosophy, and theology. Bioethics would therefore involve the study of ethics, morality and law. Basically bioethics is the study of ethical issues in the context of medical developments. One of the fundamental questions that concern us in the study of bioethics is – ‘what ought we to do?’ Stewart & Blocker1 state that ethics is simply another term for ‘moral philosophy’. It is that area of philosophy which investigates the principles governing human actions in terms of their ‘goodness, badness, rightness, and wrongness’. They further state that ethics is an extremely important branch of philosophy because it directs our attention not only to human morality but to values in general. They also raise the following questions: Are there standards that ought to govern all human behaviour? If so, how can one know what they are? Even if the ethical standard is known, why should it be followed especially, when it does not seem to be in one’s self-interest? In general, what makes something ‘good’ or ‘bad’? Is there any common property, for example, that not only makes a chocolate cake good but also has the same impact on a lawnmower? Is ‘goodness’ just a feeling people have of liking or wanting something? Ultimately, what is it that makes an action ‘right’ or ‘wrong’? Are ‘rightness’ and ‘wrongness’ just arbitrary social conventions? A multi-cultural and multi-religious country such as Malaysia can have its own peculiar issues in attempting to formulate the ethics that can universally cover all research in the biomedical field. Given Malaysia’s multi-cultural and multi-religious population the medical ethics adopted in Malaysia as stated in the Malaysian Code of Medical Ethics espouse a more multi-dimensional approach. 2 The Malaysian Code of Medical Ethics recognises that:
Malaysia is a multi-racial, multi-religious and culturally diverse nation with ‘belief in God’ being the first tenet of the country guiding principles (Rukunegara). There are many core values running through the ethical beliefs of the various communities in Malaysia, which are worthy of emulation.3 … Physicians may experience conflict between different ethical principles, between ethical and legal or regulatory requirements, or between their own ethical convictions and the demands of patients, proxy decision makers, other health professionals, employers or other 4 involved parties.
Malaysian writers on medical ethics have urged that not only must there be knowledge of medical codes but also of the philosophical and historical derivations of these codes.5 The study of Malaysian medical ethics or bioethics is not without complications. As
some Malaysian writers point out, quoting Radhakrishnan6, it is important to bear in mind that:
Ethical truths are not very easy to justify, as although the opposite of a correct statement is a false statement, the opposite of a profound ethical truth may be another profound ethical truth. Moreover, the law and ethics are not always in harmony with each other. In fact, in many situations, they would seem conflicting, although both horns of the dilemma are attached to the same bull.
There may be more than just two horns to the same bull as a recent debate on whether Malaysia is a secular or Muslim state will not help in the easy formulation of any uniquely Malaysian philosophy of bioethics. If Malaysia is indeed a Muslim state it may well dictate a single dimensional approach that will require the bioethics to be based on the principles of Islam. In an article7 on Islamic medical ethics Omar Hasan Kasule has argued that:
Secularized European law denied moral considerations associated with ‘religion’ and therefore failed to solve issues in modern medicine requiring moral considerations. This led to the birth of the discipline of medical ethics that is neither law enforceable by government nor morality enforceable by conscience. On the other hand, Islamic Law is comprehensive and encompasses moral principles directly applicable to medicine.
He in fact goes on to claim that the secularised approach of the European philosophers that disregarded religion was inferior and created a dilemma for them but that the:
Muslims did not face (such) a similar dilemma because Islamic Law, unlike European secular law, is based on a complete system of morality and can therefore handle all moral problems that arise in medicine from a legal perspective. It also is very flexible being adaptable to many new and novel situations. Strictly speaking, Muslims do not need to talk of ethics as a separate discipline because it is already included in their Law. … It was unfortunate that Muslims with the rich intellectual heritage of usul al fiqh followed the Europeans into the lizard hole by copying and using inferior European ethical theories, principles, and rules.
The question that arises is whether Western law is as secularised as claimed by Omar Hasan Kasule and really a ‘lizard hole’ created by ‘inferior European ethical theories, principles and rules’ and theological principles totally disregarded? Some Western writers such as Cahill8 have in fact argued and concluded that:
(T)he idea that theology has disappeared from public bioethics is a fallacy that distracts attention from the competing and equally elaborate symbolic narratives of science, the market and liberal individualism. … (T)heological accounts of meaning and transcendence were never really evacuated from the spheres of human health, and of institutional allocation of the goals necessary 9 to health and well-being.
The same writer in her paper has maintained that three or four decades ago, theologians like Paul Ramsay, James Gustafson, Richard McCormick and Karen Lebacqz served on the Protection of Human Subjects of Biomedical and Behavioral Research (1974) and the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1979).10 She goes on to give by way of example the role
played by Gustafson11 who does not disregard universally religious values when he defined the contributions of theology to medical ethics by lifting three themes: God intends the well-being of creation. God preserves and orders the creation, as well as creates new possibilities. Humans are finite and sinful agents who have great power to determine whether the well-being of the creation is sustained or not. Beauchamp & Childress 12 have identified four broad principles of biomedical ethics that, while being secular, do not contravene any religious or cultural values. The four principles are: Autonomy. That a patient must give ‘informed consent’ to any medical treatment that is proposed. Beneficence. This principle reflects the traditional emphasis in medicine on doing good for the patient. Non-malefience. Here no harm should be caused and it in effect reflects the Hippocratic maxim primum non nocere – ‘first of all, do no harm’. Justice. This principle assures that all harm and benefit is distributed fairly. There are indeed many philosophical and theological approaches that may be adopted. If as a starting point one adopts the approach of Stewart & Blocker, the ethical theories can be broadly divided into four theories that are in turn a result of two basic approaches to the subject of ethics. The teleological approach emphasises the consequences of an action. For every action that is taken the question to be asked is – ‘What would the consequences of that action be?’ The deontological approach on the other hand emphasises the ethics of a duty and depends on the question – ‘What are the obligations in relation to the action?’ The relationships Stewart & Blocker have ascertained are set out in the diagram below:
The teleological approach is further divided into two different theories. The first is the self-realisation theory which basically is the view that human goodness fulfils as much as human potential as possible. It is associated with the philosophy advocated by Aristotle who distinguished acts having harmful consequences according to the subjective attitudes accompanying them. The second theory under this approach is that of hedonism or happiness. Here again two standards are applied. The first is to examine each action from the standpoint of how much benefit or utility it will bring the agent. The question simply posed is – ‘What will I get out of it?’ This position of seeking ‘happiness’ differs totally in its approach from the utilitarian principle of the ‘greatest happiness for the greatest number of people’. In relation to this it is interesting to note the observations of Stewart & Blocker who state that hedonism while classified in the teleological approach is really only opposite to the deontological approach when it is egoistical hedonism. This is because under the deontological approach a person usually acts either out of concern for others or as a matter of principle whereas the egoistical hedonist would only act if it is for his or her own benefit. It is here that the utilitarian ethical theories are in agreement with the deontological approach in rejecting the self interest of egoistical hedonism inasmuch as they are non-egoistical and aim at the greatest happiness of the greatest number of people. Stewart & Blocker further state that the most important difference between the ethics of duty (deontology) and utilitarianism concerns the treatment of people. According to the ethics of duty a person can never be treated as a means to an end however worthy that end may be. If something is wrong then it is wrong in all circumstances for every person regardless of the consequences. Under the deontological approach a person would have certain inalienable rights which others have an absolute obligation to honour and protect. This short exposition of the philosophical approaches is necessary as there is constant reference to these philosophical aspects on many articles on human experimentation. Fried13 writes:
If we adhere to the Kantian precept that we may never use another human being as a means alone, no matter how exalted our ends, then we must be prepared on occasions to forgo certain net social advantages that an imposition on some individual or group of individuals might procure. On the other hand, to the extent one embraces the utilitarian ideal of maximising the greatest good of the greatest number – which is perhaps the most modern and clearest expression of the vague notion of the ‘common good’ – then the prospect of available net benefits becomes a sufficient ground for an obligation to participate in experimentation and indeed for permitting deception and compulsion in obtaining such participation.14
It is argued by Turner 15 that there is here an assumption that in all societies there exists a ‘shared common sense’ or ‘shared common moral intuitions’ but what ‘these approaches fail to recognise (is) the existence of multiple cultural and religious traditions in contemporary multicultural societies’ and that ‘other potential “markers of difference” such as culture, ethnicity, religious identity, and socio-economic status were generally neglected by moral theorists in favour of more “universalistic” accounts of moral reasoning.’ Turner further contends that although there has been the ‘emergence of
empirical research in bioethics that explores the relationships amongst ethnicity, religion, and moral deliberation, the salient normative theories in bioethics provide little practical insight into how instances of cross-cultural norm conflicts should be addressed.’16 It can be seen quite clearly that to adopt either approach in the extreme is untenable. It is therefore obvious that human experimentation for example has all this while been working in the twilight areas between the two philosophical stances though both approaches of moral reasoning have been clearly identified and recognised. These two approaches of ethical concern have been considered by the Australian National Health and Medical Research Committee (NHMRC).17 In a comment attached to one of its earlier reports18 Dr Jansen & The Reverend Dr Caughey have written that:
Grounds of ethical concern can be developed along two pathways of moral thinking: (a) fundamental beliefs seen by adherents to be self-evident (deontological principles); and, (b) the goodness or badness of consequences, whether actual, intended or predicted (teleological principles). These two ways of thinking are not mutually exclusive: in discussing a specific matter 19 they are often intertwined, arguments of one kind being used in support of those of another kind.
That the Australian NHMRC has had to face this dilemma of conflicting and varying philosophical values is clearly reflected in the following statement of NHMRC:
Throughout our discussion we tried to remember that ethics is not an exact science, that there are many issues to which the question ‘right or wrong’ cannot be given a simple answer, and that there are some matters that cannot be settled by consensus. When, therefore, our statements have indicated a belief that some activity is acceptable from an ethical standpoint, this will frequently mean not that it is clearly ethically right, rather that it is ethically defensible but may still be legitimately contributed. We recognised that judgments in these matters must always permit 20 dissent.
At this juncture, we should maybe heed the words of Pellegrino & Thomas21 who appealed that ‘(a) philosophy of ethics is needed to help clarify medicine’s goals in relationship to those of a technological civilisation. Medicine suffers from an abundance of means and a poverty of ends.’ Their appeal is further supported by Phillips & Dawson22 who write that:
It is an irony of our present situation that unless medical ethics does provide a framework for the practice of medicine, we are going to see the law intruding more and more into this area. We have already seen a few highly unsatisfactory court cases in this domain – unsatisfactory because the courts have been pronouncing in a vacuum, making judgments that cannot reflect the opinion of society on these matters because society has not thought them through or even offered the opportunity to discuss them. If this moral and intellectual vacuum continues, the courts will be dragged in with increasing frequency to provide, as Kirby put it, ‘instant solutions for acute bioethical problems’.
Mr Justice Kirby 23 is further quoted by the same authors to have said that it ‘will be the judgment of history that the scientist of our generation brought forth most remarkable developments of human ingenuity – but the lawyers, philosophers, theologians and lawmakers proved incompetent to keep pace.’24
The Australian NHMRC itself has avoided the task of laying down any clear principle of medical ethics or philosophical value that should be followed save to state that it has ‘sought to avoid violating philosophical values which we thought were widely accepted in the Australian community’.25 Again the Australian NHMRC in the adoption of another one of its policies26 refused to lay down any clear philosophy that is applicable save to recognise that there are different philosophical viewpoints to the same subject. This is best seen in the following statement in that report:
(I)t can be argued that all possible information should be available to mothers who may seek not to give birth to an abnormal baby; according to this argument, research directed to antenatal diagnosis may be justified even if it does not lead to therapy in that particular case. This second approach is sometimes justified on compassionate grounds, for the psychological, sound and economic health of the mother and her existing family. This approach may be dismissed as merely utilitarian (and regarded as irrelevant) by those who hold that the sanctity of fetal life is inviolable. Others will say that such wide consequences are part of the basis on which ethical decision must be made. The outcome of the arguments for and against foetal diagnosis in utero, especially where treatment of the foetus does not follow, will be assessed differently by different people.
Recently the Australian NHMRC27 has recognised that there are indeed many legal issues and ethical dilemmas that are created by the advancements made in research not only locally but globally as well. Local ethics have in some instances been required to be aligned with the demands of a global market. Especially in the field of research on humans there are many complex contemporary ethical dilemmas. As stated by the Australian NHMRC
In their fundamental nature, the dilemmas have been present for a long time, and may be broadly grouped under headings which ethics committees from any era would find familiar: • consent • participant safety • scientific merit • conflict of interest • risks versus benefits • protection of vulnerable people • disclosure of information to participants and their families • privacy • confidentiality.
There is little material available to reflect the formation of Malaysian public policies, laws and judicial precedents to govern aspects of practice such as research on human subjects and decisions about life sustaining treatment. With the exception of medical ethics there are no clear policies to guide the courts. Judgments will be delivered in a vacuum in the absence of properly formulated ethical policies. Even in the field of medical ethics there is much work that still needs to be done. Not least of all is to address Malaysia’s cultural and religious diversity and the need to respect the many varied concerns of its population. There seems to be little urgency to address these issues. Mr Justice Kirby, in a speech at a conference28 in Malaysia, warned that:
In the new millennium, lawyers and doctors must remain alert to the new challenges. Their capacity to do so will depend upon their willingness to learn of the changes in the world and in the societies they serve and the rapid alteration in the frontiers of scientific knowledge. Good laws, and sound application of the law, must rest on good science and on truth.
It is submitted that Malaysia is a secular state although Islam is its official religion and therefore needs to adopt and maintain a multi-dimensional approach in the formulation of any philosophy of bioethics. It is obvious that there can be no simple formulation of the ethics to be adopted and equally no simple answers to the many questions that will have to be asked. Any answer would depend on the philosophical approaches to be adopted. It is possible to recognise common and universal values in both Western and Islamic ethics. A starting point can be the observation of Siti Nurani Mohamed Nor who, in an article29 on Islamic medical ethics, has recognised that ‘(a) common deontological dimension holds the chief place in both western and Islamic medical ethics. This is to say that there must be a determination of the rightness or the wrongness of the action, and not only of the good to be gain from medical care or from medical research.’ In going forward Malaysia must not forget her rich cultural diversity and Eastern philosophical heritage that has much to offer. Hardial Singh Khaira
LL.B (Hons) Univ. of Malaya LL.M Univ. of Western Australia
& Balvinder Singh Khaira
Medical Student (Final year) University of Western Australia
BIBLIOGRAPHY Beauchamp & Childress, Principles for Biomedical Ethics, 5th edition N.Y: Oxford University Press 2001 Cahill, Lisa Sowle, Bioethics, Theology and Social Change, 2003 Journal of Religious Ethics 363 Chua Jui Meng, Teng Seng Chong, Puteri Nemie Jahn Kassim, Teng Wen Yen, The Ethics And Law On Organ Transplantation In Malaysia, NCD Malaysia 2004, volume 3, No.1 p.2, www.dph.gov.my/ncd/bulletin/Jan_Mac04/03.The%20Ethnics.pdf Kasule, Omar Hasan, Medical Ethics from Maqasid www.ishim.net/ishimj/jishim4_7_8/Vol4No7/kasule.doc Al Shari’at,
Lebacqz, Karen, Bioethics - Eleven Approaches, Dialog: A Journal of Theology Volume 43, Number 2, Summer 2004, 100 Siti Nurani Mohamed Nor, Moving on from a Patient-Centred to a God-Centred Ethics, Eubios Journal of Asian and International Bioethics 11 (2001), 52-54, http://www.eubios.info/EJ112/EJ112H.htm Teoh, Siang Chin, Continuing Development in Ethics and Professionalism by Malaysian Medical Association, JMAJ May/June 2007 Vol. 50, No. 3 p.228, www.med.or.jp/english/pdf/2007_03/228_233.pdf Turner, Leigh, Bioethics in a Multicultural World: Medicine and Morality in Pluralistic Settings, Health Care Analysis, Vol. 11, No. 2, June 2003 99
Fundamentals of Philosophy, MacMillan Publishing 1982 Code of Medical Ethics adopted at the 41st Annual General Meeting of the Malaysian Medical Association 26th - 27th May 2001 and revised edition printed in February 2002, www.mma.org.my/charters/Ethical_code2.pdf 3 Malaysian Code of Medical Ethics at p.5 4 Ibid at p.7 5 Teoh, Siang Chin, Continuing Development in Ethics and Professionalism by Malaysian Medical Association, JMAJ May/June 2007 Vol. 50, No. 3 p.228 at p.232, www.med.or.jp/english/pdf/2007_03/228_233.pdf 6 Radhakrishnan S., Law and Medical Ethics, Proceedings of First National Conference on Medical Ethics. Ministry of Health Malaysia, Academy of Medicine of Malaysia and Malaysian Medical Association, Nov 1999 as quoted by Chua Jui Meng, Teng Seng Chong, Puteri Nemie Jahn Kassim, Teng Wen Yen, The Ethics And Law On Organ Transplantation In Malaysia, NCD Malaysia 2004, volume 3, No.1 p.2, www.dph.gov.my/ncd/bulletin/Jan_Mac0 4/03.The%20Ethnics.pdf 7 Medical Ethics from Maqasid Al Shari’at, www.ishim.net/ishimj/jishim4_7_8/Vol4No7/kasule.doc 8 Cahill, Lisa Sowle, Bioethics, Theology and Social Change, 2003 Journal of Religious Ethics 363 9 Ibid at p.391 10 Ibid at p.366 11 Ibid at p.367. See Gustafson, James, The Contributions of Theology to Medical Ethics, Milwaukee, Marquette University Theology Department 1975
Beauchamp & Childress, Principles for Biomedical Ethics, 5th edition N.Y: Oxford University Press 2001 13 Human Experimentation: Basic Issues and Philosophical Aspects, Encyclopedia of Bioethics Vol 2, Collier MacMillan Publishers, London 1978 14 Ibid at p.701 15 Turner, Bioethics in a Multicultural World: Medicine and Morality in Pluralistic Settings, Health Care Analysis, Vol. 11, No. 2, June 2003 99 16 Ibid at p.103 17 This is a statutory authority within the portfolio of the Commonwealth Minister for Human Services and Health, established by the National Health and Medical Research Council Act 1992. It advises the Australian community and g overnments on standards of individual and public health, and supports research to improve those standards. The Council publishes extensively in the following areas: Child health, Clinical practice, Communicable diseases, Dentistry, Drugs and poisons, Drug and substance abuse, Environmental health, Health ethics, Infection control, Mental health, Nutrition, Public health, Radiation and Women’s health. 18 Ethics in Medical Research (NHMRC 1982) 19 Ibid, Appendix III, para 1.3 p.31 20 Ibid, para 5.1.2 p.5 21 A Philosophical Basis of Medical Practice, Oxford University Press 1981 22 Doctors’ Dilemmas – Medical Ethics and Contemporary Science, The Harvester Press 1985 at p.189 23 Mr Justice Kirby was the former judge of the High Court of Australia (the court of highest jurisdiction in Australia) and also the former Chairman of the Australian Law Reform Commission. 24 Ibid, at p.191 25 Supra, para 5.1.2 p.5 26 Ethics in Medical Research Involving the Human Foetus & Human Foetal Tissue, Adopted by the Council at its ninety-sixth session, October 1983, AGPS 1983. 27 Challenging Ethical Issues in Contemporary Research on Human Beings, June 2007 at p.63 28 The Speech by The Honourable Justice Michael Kirby AC CMG at The Medico-Legal Society of Malaysia's Professional Conference on 'Medicine, Law and Human Rights in the New Millennium', http://www.lexisnexis.com.my/free/articles/kirby.htm 29 Moving on from a Patient-Centred to a God-Centred Ethics, Eubios Journal of Asian and International Bioethics 11 (2001), 52-54, http://www.eubios.info/EJ112/EJ112H.htm