What is the ruling on post mortems (autopy), particularly those requested by the police?

ISLAM AND THE AUTOPSY%0D%0AMahomed A. Dada, MB ChB, MMed (Forensic Path), DOM, MMed (Anat Path), DABFE,%0D%0ADABFM, FRIPHH.%0D%0A%0D%0AProfessor and Head of Department of Forensic Medicine, University of Natal.%0D%0A%0D%0AJIMASA-DEC 1998%2FRAMADAAN 1419 VOL4, NO3%0D%0A"Wherever you may be death will overtake you, though you remain even in%0D%0Alofty towers."(Quran 4:78)%0D%0A%0D%0AThe death of a patient can be as devastating to a physician as it is to the%0D%0Afamily of the deceased. A good physician needs to know how to break the news%0D%0Aof such an event to the family and by his knowledge of his patient will be%0D%0Aable to provide information to help the family in their hour of need. In the%0D%0Acase of a death of a Muslim patient it is essential that the doctor%0D%0Aunderstand the religious and cultural aspects of burial and attitudes%0D%0Atowards the autopsy.%0D%0A%0D%0AIgnorance of South African law and myths about the autopsy has led to%0D%0Aprolonging the grief of bereaved families and has prompted us to write this%0D%0Aarticle which we hope will clarify some of the problem issues and be a focus%0D%0Afor further discussion. It is the duty of the medical practitioner to issue%0D%0Aa death certificate (Form BI-1663, previously BI-12) on the death of his%0D%0Apatient. The certificate must be issued immediately. In order to fill in the%0D%0Adeath certificate correctly, the doctor must classify every death according%0D%0Ato its cause; that is, natural or unnatural (see below for discussion). If%0D%0Athe death was due to a notifiable disease then the doctor must immediately%0D%0Anotify the local health authority.1%0D%0A%0D%0AThis differentiation between deaths due to natural or unnatural causes has%0D%0Afar-reaching legal consequences for the deceased's next of kin, for example,%0D%0Awhether there is to be a police inquiry leading to a criminal and%2For civil%0D%0Aaction. This decision may not always be easy, and what may appear as natural%0D%0Acauses may not be so, or vice-versa. An incorrect choice could have major%0D%0Aimpact on the deceased's family in terms of possible exhumation being%0D%0Acarried out or failure of insurance companies to pay out policies on the%0D%0Adeceased's life. Most problems arise because of confusion about the%0D%0Aformulation of the cause of death and the death certificate.%0D%0A%0D%0AWHAT IS UNNATURAL DEATH?%0D%0AThe distinction between natural and unnatural death is difficult and to some%0D%0Aextent based on convention within our society rather than rules of law.%0D%0AThere is no definition of what is natural or unnatural death ("anaesthetic%0D%0Adeath" being the one exception) and the doctor or magistrate must use%0D%0Amedical evidence and opinion together with the current values of our society%0D%0Ato make a judgement on the issue. By convention, if the following aspects%0D%0Aare present a death may be classified as unnatural.%0D%0A%0D%0A"External Factors"%0D%0ADeaths due to the application of force on the body and physical and chemical%0D%0Afactors. These include:%0D%0A* physical factors - heat, cold, radiation%0D%0A* chemical factors - chemical surface burns%2Fingestion of drugs and poisons%0D%0A* mechanical factors -road traffic accidents, gunshot wounds, assaults%0D%0A%0D%0AThe force applied may be direct or indirect, with or without complications,%0D%0Ae.g. urinary tract infection and septicaemia occurring 13 months after motor%0D%0Avehicle accident in which there was spinal cord damage and paraplegia.%0D%0A%0D%0A"Anaesthetic Deaths"%0D%0ADeaths in terms of Section 56 of the Medical, Dental and Supplementary%0D%0AHealth Services Professions Act, 1974, (this is that one exception), which%0D%0Astates:%0D%0A%0D%0A"If a person dies under the influence of a local or general anaesthetic or%0D%0Awhere the administration of such an anaesthetic may have played a role in%0D%0Athe death of the deceased, such a death is not regarded as natural and must%0D%0Abe reported to a police officer".%0D%0A%0D%0AIn order to determine whether a death will fall under the above category, it%0D%0Ais necessary to ask the following pertinent questions:%0D%0Aa) Was the patient under the influence of local or general anaesthetic?%0D%0A%0D%0AThe answer will depend on the clinical impression as to whether the patient%0D%0Awas able to act consciously or not. That is, if the patient has recovered%0D%0Aconsciousness, or has been restored to the condition he or she was in prior%0D%0Ato the administration of the anaesthetic, that anaesthesia is not%0D%0Aresponsible for the subsequent death of the patient. However, in some cases,%0D%0Aanaesthesia may contribute to delayed deaths e.g. liver failure induced by%0D%0Athe administration of halothane. As long as a causal relationship exists%0D%0Abetween the administration of the anaesthetic and the death, the death%0D%0Acannot be considered to be due to natural causes.%0D%0A%0D%0Ab) Did the anaesthetic play a contributory role in the death of the patient?%0D%0A%0D%0AIf the patient would not have died had an anaesthetic not been administered,%0D%0Ait must be taken for granted that the anaesthetic contributed to the death.%0D%0ADeaths due to the disease%2Finjury for which the patient originally presented%0D%0Aand deaths due to surgical mishaps, blood transfusion reaction and%0D%0Aidiosyncratic drug reactions are still regarded as " anaesthetic death" as%0D%0Along as it is deemed that the patient was still under the influence of the%0D%0Aanaesthetic.%0D%0A%0D%0Ac) Is there a time period for a death to be classified as an "anaesthetic%0D%0Adeath"?%0D%0A%0D%0AContrary to popular belief among clinicians, there is no time limit to the%0D%0Adefinition of an anaesthetic death (No 24-hour rule).%0D%0A%0D%0Ad) What about deaths associated with diagnostic and%2For therapeutic%0D%0Aprocedures?%0D%0A%0D%0ADeaths due to diagnostic%2Ftherapeutic procedures are grouped under the%0D%0A"anaesthetic deaths"; i.e. unnatural deaths. These deaths may well fall%0D%0Aunder the "act or omission" criteria of unnatural deaths described below.%0D%0A%0D%0ASUDDEN AND UNEXPECTED DEATHS%0D%0AWhere a medical practitioner is unable to provide a death certificate of%0D%0Anatural causes; e.g. the practitioner has not treated the deceased whose%0D%0Adeath was not only sudden and unexpected but also unexplained. These deaths%0D%0Aregarded as "unnatural" until the pathologist, on the basis of an autopsy or%0D%0Amore information from the police and%2For family, may certify the death as%0D%0Abeing due to a natural cause.%0D%0A%0D%0AACTS OF COMMISSION OR OMISSION%0D%0ADeath, normally considered being due to natural causes, but which in the%0D%0Amedical practitioner's opinion was caused by an act (of commission) or (act%0D%0Aof) omission on the part of a person or persons, e.g. failure of a medical%0D%0Apractitioner to treat a non-fatal condition and where such an omission%0D%0Acontributed to the patient's death. There is no time limit within which an%0D%0Ainjury or incident may only be related to subsequent death. In other words,%0D%0Ano matter what the interval of time elapses between an injury and subsequent%0D%0Adeath, as long as there exists a causal relationship, then the death cannot%0D%0Abe regarded as natural.%0D%0A%0D%0ADeath, in a case where a specific act of omission is suspected, must be%0D%0Aconsidered to be as a result of unnatural causes, and must be reported to%0D%0Athe magistrate. The magistrate, and not the medical practitioner, must then%0D%0Adecide whether the act or omission by the person concerned involved or%0D%0Aamounted to an offence. The above applies most often to deaths under medical%0D%0Atreatment.%0D%0A%0D%0AHere again, the doctor is empowered to use his professional discretion, e.g.%0D%0Ain meconium aspiration following foetal distress, as a result of delayed%0D%0Alabour perhaps because the doctor did not refer the mother timeously to%0D%0Ahospital for expert attention (negligence), may be regarded as unnatural.%0D%0A%0D%0ATHE NEW DEATH CERTIFICATE (BI 1663)%0D%0ARecently, the new death certificate was introduced in a two-page format. The%0D%0Afirst page will have demographic details of the patient and will simply%0D%0Astate whether the death was due to natural or unnatural causes.%0D%0A%0D%0AThe second page of the new certificate will contain the complete diagnosis.%0D%0AAt present the 2nd page is placed in an envelope and stapled to the first%0D%0Apage and handed to the person registering the death. This will prevent%0D%0Adisclosure of the cause of death to unauthorised persons. A perceived%0D%0Aadvantage of the new form is that diagnoses such as AIDS can be written on%0D%0Athe death certificate with the assurance that unauthorised disclosure will%0D%0Anot stigmatise the family of the deceased.%0D%0A%0D%0ACAUSE OF DEATH (COD) STATEMENT (Part G, Page 2 of BI-1663)%0D%0AThe Underlying Cause of Death (UCOD) has been defined as "(a) the disease or%0D%0Ainjury which initiated the train of morbid events leading directly to death,%0D%0Aor (b) the circumstances of the accident or violence which produced the%0D%0Afatal injury".%0D%0A%0D%0AIt is the underlying cause of death that will determine whether a death is%0D%0Anatural or not. Part 1 is formatted so that sequential information is%0D%0Areported with one condition per line, starting with the most recent%0D%0Acondition on the top line and going backward in time on progressively lower%0D%0Alines. Each condition can cause the one on the line above it. It is not%0D%0Aalways necessary to use all of the lines in Part 1. Although rarely needed,%0D%0Aextra lines may be added. The top line (A) should always be used. Part 2 is%0D%0Afor any other significant condition (Contributory cause) that contributed to%0D%0Athe fatal outcome, but was not related to the disease or condition directly%0D%0Acausing death.%0D%0A%0D%0AThe above terms must be differentiated from:%0D%0A* manner of death which refers to the circumstances of how the cause of%0D%0Adeath arose (natural, accidental, suicide, homicide, iatrogenic or%0D%0Aundetermined)%0D%0A*mechanism of death which refers to the physiologic derangement or%0D%0Abiochemical disturbance produced by a cause of death e.g. in a stab wound of%0D%0Athe heart (cause of death), the mechanism of death may be cardiac tamponade%0D%0Aor hypovolaemic shock. Many practitioners mistakenly attribute the cause of%0D%0Adeath to the mechanism of death.%0D%0A%0D%0AGUIDELINES TO THE COMPLETION OF THE CAUSE OF DEATH STATEMENT%0D%0A(1) Make every effort to report an etiologically specific underlying cause%0D%0Aof death.%0D%0A(2) Try to use a Sequential Part 1 Format, if possible.%0D%0A(3) Err on the side of reporting too much rather than too little.%0D%0A(4) DO NOT report symptoms or signs.%0D%0A(5) DO NOT report a condition if its existence in the patient is obvious%0D%0Abased on another reported condition.%0D%0A(6) DO NOT oversimplify%0D%0A(7) DO NOT use abbreviations%0D%0A(8) DO NOT report mechanistic terminal events such as:%0D%0A* cardiac arrest%0D%0A* asystole%0D%0A* cardiopulmonary arrest%0D%0A* respiratory arrest%0D%0A* electromechanical dissociation%0D%0A* ventricular fibrillation%0D%0A%0D%0AMATERNAL DEATHS%0D%0AThe World Health Assembly (1990) adopted a recommendation that countries%0D%0Ashould consider the inclusion on the death certificate of questions about%0D%0Athe current pregnancy and pregnancy within one year preceding death. As a%0D%0Aresult legislation was passed on 3rd October 1997 making it mandatory to%0D%0Areport all maternal deaths. A National Committee for the Confidential%0D%0AEnquiry into Maternal Deaths has been established to perform confidential%0D%0Aenquiries into maternal deaths. A detailed questionnaire has been developed%0D%0Aby the Department of Health and is to be filled in by all health care%0D%0Apersonnel involved.%0D%0A%0D%0APROBLEMS WITH EXAMINATION OF THE BODY IN ISLAMIC LAW%0D%0A%0D%0A1. Consent for an autopsy%0D%0AThe Bill of Rights guarantees the right to freedom of conscience, religion,%0D%0Athought, belief and opinion.2 This right is not absolute and may be%0D%0Asuspended for the benefit of the community or for the pursuit of justice. In%0D%0Aunnatural deaths, consent from the family is not required as the autopsy is%0D%0Acarried out on the instruction or order of a legal authority (magistrate)%0D%0Aand the examination is directed towards the public good.3%0D%0A%0D%0AIn the case of natural deaths consent may be given by the deceased%0D%0Ahim%2Fherself before death by way of a will (testament), orally before two%0D%0Awitnesses who must be older than 14 years of age or by the wearing of an%0D%0Aidentification bracelet%2Ftag such as "Medic-Alert". Alternatively, the%0D%0Aattending doctor may requests an autopsy to determine more precisely the%0D%0Acause of death or for a specific scientific purpose.4 Authorisation is%0D%0Aobtained from the magistrate, doctor in charge of the mortuary or a person%0D%0Adesignated by him%2Fher, or the superintendent of the hospital%2Finstitution%0D%0Aconcerned. Consent from the family is not a legal prerequisite for an%0D%0Aautopsy in the case of a natural death. It is for ethical reasons that we%0D%0Aapproach the family for permission for a post-mortem examination. In the%0D%0Acase of a Muslim patient permission from the next of kin must be obtained in%0D%0Athe following order of priority:5%0D%0A1. father, son, mother%0D%0A2. siblings, wife, grandfather, grandson%0D%0A3. paternal and maternal uncles cousins%0D%0AAlthough the wife may not be a blood relative she is given a high ranking as%0D%0Aone would logically expect. We must at all times try to respect the%0D%0Afamilies' religious and personal beliefs. "Overriding" the family's%0D%0Aobjections is only warranted for the greater good of the community at large%0D%0Aand for statutory and medico-legal reasons. This feeling was echoed by the%0D%0AFatwa Committee at Al-Azhar (January 1982) who concluded that if medical%0D%0Astudents learn from post-mortems, if justice prevails through them and if%0D%0Acontagious diseases can be controlled through them, then benefits indeed%0D%0Aoutnumber damages, provided that these examinations are performed only when%0D%0Anecessary.6%0D%0A2. Are we violating the sanctity of the human body by performing a%0D%0Apost-mortem?%0D%0A"The breaking of the bone of a dead person is like breaking the bone of a%0D%0Alive person"(Imam Ahmad bin Hanbal)%0D%0AIn the "Al-Jawaab" column in the An-Noor, a bimonthly Islamic publication,%0D%0Aan unnamed author makes a passionate attack on the practice of the autopsy%0D%0Aand describes it as a "crude, futile and dishonourable practice of%0D%0Amutilating the human body".7 He goes on to regard the autopsy as part of the%0D%0Aconspiracy on the part of the "non-Muslims" against Islam. In the entire%0D%0Adiscourse no attempt is made to refer to any fatwa or other form of%0D%0A%0Areference.%0D%0ASome 'ulama' often confuse muthlah as meaning mutilation occurring with an%0D%0Aautopsy. The autopsy, carried out under the instruction of a legal%0D%0Aauthority, is a scientific examination of the dead body by a medical%0D%0Apractitioner with the aim directed towards the public good. Whereas, the%0D%0Aterm muthlah refers to the malicious desecration of a body because of hatred%0D%0Aas was the case with the body of hadrat Hamza (r.a.) by Hindah; who made a%0D%0Agarland from the nose and ears of his dead body.%0D%0AIn an Islamic judicial system an autopsy is not necessary if the accused%0D%0Aconfesses to murder before the judge. However, most murderers will try to%0D%0Adestroy evidence of their crime to try to make the death appear as suicide.%0D%0AIn these cases it would be necessary to conduct an autopsy to determine the%0D%0Acause and manner of death,8 which under the circumstances, would be%0D%0Apermissible by Islamic Law.%0D%0AIn the South African situation as it is in most countries that are not%0D%0Agoverned by Shariah law, it is mandatory to do a post-mortem examination on%0D%0Aall cases of unnatural deaths and in some cases of natural deaths. This is%0D%0Anot something new, as the Islamic legal maxim, "necessity permits the%0D%0Aforbidden" was invoked to investigate crime in the days of Averroes [Ibn%0D%0ARushd], Avicenna [Ibn Sina] and Rhazes [Razi] [10-12 C]. Furthermore,%0D%0Adissection of cadavers in Departments of Anatomy are permitted Islamically,%0D%0Aand the janazah (funeral) salah (prayer) is delayed until the body has%0D%0Ataught the dissector what he%2Fshe needs to know.%0D%0A3. Should the burial be postponed so that an autopsy may be performed?9%0D%0A"Hasten the burial of the deceased" (Hadith)%0D%0AIt is commendable that after death of a Muslim his dead body should be%0D%0Aburied as soon as possible. Unfortunately, the performance of an autopsy%0D%0Awill cause a delay in the burial of the deceased and will result in the body%0D%0Abeing transferred from place to place. Sympathetic treatment by the police%0D%0Aand the Department of Health staff has now reduced this delay to a minimum%0D%0Adue to a 7-day a week autopsy service now being in place in most centres.%0D%0AThe Islamic Ruling is to bury the dead as soon as possible, but there is%0D%0Aalways an exception to the rule. Thus, if there is any compelling reason to%0D%0Adelay the burial, it can be done. The neccessity of carrying out an autopsy%0D%0Awould be one of the exceptions to the rule.%0D%0AACKNOWLEGEMENTS%0D%0AThe author wishes to thank the following persons for their assistance: Prof.%0D%0ASS Nadvi, Head of Department of Islamic Studies, University of%0D%0ADurban-Westville, Dr SR Naidoo, Department of Forensic Medicine, University%0D%0Aof Natal, Dr S. Sameer Nadvi, Head of the Department of Neurosurgery,%0D%0AUniversity of Natal and Ms Jo Clarke, Barrister, London.%0D%0A%0D%0AREFERENCES%0D%0A1. Health Act (Act 63 of 1977).%0D%0A2. s15, The Constitution of the Republic of South Africa, Act 108 of 1996.%0D%0A3. Inquest Act (Act 58 of 1959).%0D%0A4. Hussain, W. "Post-Mortem Examination: The Qur'anic View" in Al-`Ilm.%0D%0AJournal of Islamic Studies. University of Durban-Westville. 1994; 14:34-40.%0D%0A5. Ghanem, I. "Permission for Performing Autopsy: The Pitfalls in Islamic%0D%0ALaw" in Med. Sci Law. 1988; 28:241-242.%0D%0A6. Majallat al-Azhar. 1982 Jan:650.%0D%0A7. Anon. The Practice of Post-Mortem. An-Noor. 1997; 12:4.%0D%0A8. Hussain, W. "Post-Mortem Examination: The Quranic View" in Al-`Ilm.%0D%0AJournal of Islamic Studies. University of Durban-Westville. 1994; 14:34-40.%0D%0A9. Ripler-Chaim, V. The Ethics of Post-Mortem Examinations in Contemporary%0D%0AIslam. J Med Ethics. 1993; 19:164-168.%0D%0A