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Bioethics in Multi-cultural and Multi-religious Malaysia

In Malaysia while there are guidelines for medical ethics there seems to be no clearphilosophy for bioethics. Medical ethics are narrower in their application and are morerelated to moral issues associated with the practice of medicine. Bioethics on the otherhand covers a much wider field and is concerned with the ethical questions that arise inthe 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 – ‘whatought we to do?’ Stewart & Blocker1 state that ethics is simply another term for ‘moralphilosophy’. It is that area of philosophy which investigates the principles governinghuman actions in terms of their ‘goodness, badness, rightness, and wrongness’. Theyfurther state that ethics is an extremely important branch of philosophy because it directsour attention not only to human morality but to values in general. They also raise thefollowing 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 peculiarissues in attempting to formulate the ethics that can universally cover all research in thebiomedical field. Given Malaysia’s multi-cultural and multi-religious population themedical ethics adopted in Malaysia as stated in the Malaysian Code of Medical Ethicsespouse a more multi-dimensional approach.2 The Malaysian Code of Medical Ethicsrecognises that:

Malaysia is a multi-racial, multi-religious and culturally diverse nation with ‘belief in God’ beingthe first tenet of the country guiding principles (Rukunegara). There are many core values runningthrough the ethical beliefs of the various communities in Malaysia, which are worthy ofemulation.3 … Physicians may experience conflict between different ethical principles, betweenethical and legal or regulatory requirements, or between their own ethical convictions and thedemands of patients, proxy decision makers, other health professionals, employers or otherinvolved parties.4

Malaysian writers on medical ethics have urged that not only must there be knowledge ofmedical 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

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some Malaysian writers point out, quoting Radhakrishnan6, it is important to bear in mindthat:

Ethical truths are not very easy to justify, as although the opposite of a correct statement is a falsestatement, 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 manysituations, they would seem conflicting, although both horns of the dilemma are attached to thesame bull.

There may be more than just two horns to the same bull as a recent debate on whetherMalaysia is a secular or Muslim state will not help in the easy formulation of anyuniquely Malaysian philosophy of bioethics. If Malaysia is indeed a Muslim state it maywell dictate a single dimensional approach that will require the bioethics to be based onthe principles of Islam. In an article7 on Islamic medical ethics Omar Hasan Kasule hasargued that:

Secularized European law denied moral considerations associated with ‘religion’ and thereforefailed to solve issues in modern medicine requiring moral considerations. This led to the birth ofthe discipline of medical ethics that is neither law enforceable by government nor moralityenforceable by conscience. On the other hand, Islamic Law is comprehensive and encompassesmoral principles directly applicable to medicine.

He in fact goes on to claim that the secularised approach of the European philosophersthat 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 arisein medicine from a legal perspective. It also is very flexible being adaptable to many new andnovel situations. Strictly speaking, Muslims do not need to talk of ethics as a separate disciplinebecause it is already included in their Law. … It was unfortunate that Muslims with the richintellectual heritage of usul al fiqh followed the Europeans into the lizard hole by copying andusing inferior European ethical theories, principles, and rules.

The question that arises is whether Western law is as secularised as claimed by OmarHasan Kasule and really a ‘lizard hole’ created by ‘inferior European ethical theories,principles and rules’ and theological principles totally disregarded? Some Westernwriters 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 attentionfrom the competing and equally elaborate symbolic narratives of science, the market and liberalindividualism. … (T)heological accounts of meaning and transcendence were never reallyevacuated from the spheres of human health, and of institutional allocation of the goals necessaryto health and well-being.9

The same writer in her paper has maintained that three or four decades ago, theologianslike Paul Ramsay, James Gustafson, Richard McCormick and Karen Lebacqz served onthe Protection of Human Subjects of Biomedical and Behavioral Research (1974) and thePresident’s Commission for the Study of Ethical Problems in Medicine and Biomedicaland Behavioral Research (1979).10 She goes on to give by way of example the role

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played by Gustafson11 who does not disregard universally religious values when hedefined 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 & Childress12 have identified four broad principles of biomedical ethics that,while being secular, do not contravene any religious or cultural values. The fourprinciples are:

Autonomy. That a patient must give ‘informed consent’ to any medical treatmentthat is proposed.

Beneficence. This principle reflects the traditional emphasis in medicine on doinggood for the patient.

Non-malefience. Here no harm should be caused and it in effect reflects theHippocratic 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. Ifas a starting point one adopts the approach of Stewart & Blocker, the ethical theories canbe broadly divided into four theories that are in turn a result of two basic approaches tothe subject of ethics. The teleological approach emphasises the consequences of anaction. For every action that is taken the question to be asked is – ‘What would theconsequences of that action be?’ The deontological approach on the other handemphasises the ethics of a duty and depends on the question – ‘What are the obligationsin relation to the action?’ The relationships Stewart & Blocker have ascertained are setout in the diagram below:

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The teleological approach is further divided into two different theories. The first is theself-realisation theory which basically is the view that human goodness fulfils as much ashuman potential as possible. It is associated with the philosophy advocated by Aristotlewho distinguished acts having harmful consequences according to the subjective attitudesaccompanying them.

The second theory under this approach is that of hedonism or happiness. Here again twostandards are applied. The first is to examine each action from the standpoint of howmuch benefit or utility it will bring the agent. The question simply posed is – ‘What willI get out of it?’ This position of seeking ‘happiness’ differs totally in its approach fromthe 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 statethat hedonism while classified in the teleological approach is really only opposite to thedeontological approach when it is egoistical hedonism. This is because under thedeontological approach a person usually acts either out of concern for others or as amatter of principle whereas the egoistical hedonist would only act if it is for his or herown benefit. It is here that the utilitarian ethical theories are in agreement with thedeontological approach in rejecting the self interest of egoistical hedonism inasmuch asthey are non-egoistical and aim at the greatest happiness of the greatest number ofpeople. Stewart & Blocker further state that the most important difference between theethics 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 endhowever worthy that end may be. If something is wrong then it is wrong in allcircumstances for every person regardless of the consequences. Under the deontologicalapproach a person would have certain inalienable rights which others have an absoluteobligation to honour and protect.

This short exposition of the philosophical approaches is necessary as there is constantreference 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 socialadvantages that an imposition on some individual or group of individuals might procure. On theother hand, to the extent one embraces the utilitarian ideal of maximising the greatest good of thegreatest number – which is perhaps the most modern and clearest expression of the vague notionof the ‘common good’ – then the prospect of available net benefits becomes a sufficient ground foran obligation to participate in experimentation and indeed for permitting deception andcompulsion in obtaining such participation.14

It is argued by Turner15 that there is here an assumption that in all societies there exists a‘shared common sense’ or ‘shared common moral intuitions’ but what ‘these approachesfail to recognise (is) the existence of multiple cultural and religious traditions incontemporary multicultural societies’ and that ‘other potential “markers of difference”such as culture, ethnicity, religious identity, and socio-economic status were generallyneglected by moral theorists in favour of more “universalistic” accounts of moralreasoning.’ Turner further contends that although there has been the ‘emergence of

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empirical research in bioethics that explores the relationships amongst ethnicity, religion,and moral deliberation, the salient normative theories in bioethics provide little practicalinsight into how instances of cross-cultural norm conflicts should be addressed.’16 It canbe seen quite clearly that to adopt either approach in the extreme is untenable. It istherefore obvious that human experimentation for example has all this while beenworking in the twilight areas between the two philosophical stances though bothapproaches of moral reasoning have been clearly identified and recognised.

These two approaches of ethical concern have been considered by the AustralianNational Health and Medical Research Committee (NHMRC).17 In a comment attachedto 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) thegoodness or badness of consequences, whether actual, intended or predicted (teleologicalprinciples). These two ways of thinking are not mutually exclusive: in discussing a specific matterthey are often intertwined, arguments of one kind being used in support of those of another kind.19

That the Australian NHMRC has had to face this dilemma of conflicting and varyingphilosophical 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 aremany issues to which the question ‘right or wrong’ cannot be given a simple answer, and thatthere are some matters that cannot be settled by consensus. When, therefore, our statements haveindicated a belief that some activity is acceptable from an ethical standpoint, this will frequentlymean not that it is clearly ethically right, rather that it is ethically defensible but may still belegitimately contributed. We recognised that judgments in these matters must always permitdissent.20

At this juncture, we should maybe heed the words of Pellegrino & Thomas21 whoappealed that ‘(a) philosophy of ethics is needed to help clarify medicine’s goals inrelationship to those of a technological civilisation. Medicine suffers from an abundanceof 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 thepractice of medicine, we are going to see the law intruding more and more into this area. We havealready seen a few highly unsatisfactory court cases in this domain – unsatisfactory because thecourts have been pronouncing in a vacuum, making judgments that cannot reflect the opinion ofsociety on these matters because society has not thought them through or even offered theopportunity to discuss them. If this moral and intellectual vacuum continues, the courts will bedragged in with increasing frequency to provide, as Kirby put it, ‘instant solutions for acutebioethical problems’.

Mr Justice Kirby23 is further quoted by the same authors to have said that it ‘will be thejudgment of history that the scientist of our generation brought forth most remarkabledevelopments of human ingenuity – but the lawyers, philosophers, theologians andlawmakers proved incompetent to keep pace.’24

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The Australian NHMRC itself has avoided the task of laying down any clear principle ofmedical 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 acceptedin the Australian community’.25

Again the Australian NHMRC in the adoption of another one of its policies26 refused tolay down any clear philosophy that is applicable save to recognise that there are differentphilosophical viewpoints to the same subject. This is best seen in the following statementin that report:

(I)t can be argued that all possible information should be available to mothers who may seek not togive birth to an abnormal baby; according to this argument, research directed to antenataldiagnosis may be justified even if it does not lead to therapy in that particular case. This secondapproach is sometimes justified on compassionate grounds, for the psychological, sound andeconomic health of the mother and her existing family. This approach may be dismissed asmerely utilitarian (and regarded as irrelevant) by those who hold that the sanctity of fetal life isinviolable. Others will say that such wide consequences are part of the basis on which ethicaldecision 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 differentpeople.

Recently the Australian NHMRC27 has recognised that there are indeed many legal issuesand ethical dilemmas that are created by the advancements made in research not onlylocally but globally as well. Local ethics have in some instances been required to bealigned with the demands of a global market. Especially in the field of research onhumans there are many complex contemporary ethical dilemmas. As stated by theAustralian NHMRC

In their fundamental nature, the dilemmas have been present for a long time, and may be broadlygrouped 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 humansubjects and decisions about life sustaining treatment. With the exception of medicalethics there are no clear policies to guide the courts. Judgments will be delivered in avacuum in the absence of properly formulated ethical policies. Even in the field ofmedical ethics there is much work that still needs to be done. Not least of all is to addressMalaysia’s cultural and religious diversity and the need to respect the many variedconcerns of its population. There seems to be little urgency to address these issues. MrJustice Kirby, in a speech at a conference28 in Malaysia, warned that:

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In the new millennium, lawyers and doctors must remain alert to the new challenges. Theircapacity to do so will depend upon their willingness to learn of the changes in the world and in thesocieties 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 andtherefore needs to adopt and maintain a multi-dimensional approach in the formulation ofany philosophy of bioethics. It is obvious that there can be no simple formulation of theethics to be adopted and equally no simple answers to the many questions that will haveto 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 Islamicethics. A starting point can be the observation of Siti Nurani Mohamed Nor who, in anarticle29 on Islamic medical ethics, has recognised that ‘(a) common deontologicaldimension holds the chief place in both western and Islamic medical ethics. This is tosay that there must be a determination of the rightness or the wrongness of the action, andnot only of the good to be gain from medical care or from medical research.’ In goingforward Malaysia must not forget her rich cultural diversity and Eastern philosophicalheritage that has much to offer.

Hardial Singh KhairaLL.B (Hons) Univ. of MalayaLL.M Univ. of Western Australia

&

Balvinder Singh KhairaMedical Student (Final year)University of Western Australia

September 2008

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BIBLIOGRAPHY

Beauchamp & Childress, Principles for Biomedical Ethics, 5th edition N.Y: OxfordUniversity Press 2001

Cahill, Lisa Sowle, Bioethics, Theology and Social Change, 2003 Journal of ReligiousEthics 363

Chua Jui Meng, Teng Seng Chong, Puteri Nemie Jahn Kassim, Teng Wen Yen, TheEthics 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 Al Shari’at,www.ishim.net/ishimj/jishim4_7_8/Vol4No7/kasule.doc

Lebacqz, Karen, Bioethics - Eleven Approaches, Dialog: A Journal of Theology Volume43, 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 MalaysianMedical 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 PluralisticSettings, Health Care Analysis, Vol. 11, No. 2, June 2003 99

1 Fundamentals of Philosophy, MacMillan Publishing 19822 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.54 Ibid at p.75 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, Nov1999 as quoted by Chua Jui Meng, Teng Seng Chong, Puteri Nemie Jahn Kassim, Teng Wen Yen, TheEthics 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.doc8 Cahill, Lisa Sowle, Bioethics, Theology and Social Change , 2003 Journal of Religious Ethics 3639 Ibid at p.39110 Ibid at p.36611 Ibid at p.367. See Gustafson, James, The Contributions of Theology to Medical Ethics, Milwaukee,

Marquette University Theology Department 1975

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12 Beauchamp & Childress, Principles for Biomedical Ethics, 5th edition N.Y: Oxford University Press2001

13 Human Experimentation: Basic Issues and Philosophical Aspects, Encyclopedia of Bioethics Vol 2,Collier MacMillan Publishers, London 1978

14 Ibid at p.70115 Turner, Bioethics in a Multicultural World: Medicine and Morality in Pluralistic Settings, Health Care

Analysis, Vol. 11, No. 2, June 2003 9916 Ibid at p.10317 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 theAustralian community and governments on standards of individual and public health, and supportsresearch to improve those standards. The Council publishes extensively in the following areas: Childhealth, Clinical practice, Communicable diseases, Dentistry, Drugs and poisons, Drug and substanceabuse, 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.3120 Ibid, para 5.1.2 p.521 A Philosophical Basis of Medical Practice, Oxford University Press 198122 Doctors’ Dilemmas – Medical Ethics and Contemporary Science, The Harvester Press 1985 at p.18923 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.19125 Supra, para 5.1.2 p.526 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.6328 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 InternationalBioethics 11 (2001), 52-54, http://www.eubios.info/EJ112/EJ112H.htm