Islamic Center of Southern California

The Arguments of Islamic Law Rulings on Recent Medical Issues

Topic Thirty Nine

The Rights and Obligations of the Handicapped and Psychological Patients and Outlining the Preventive Fence for Mental and Psychological Diseases

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Definition

For a person to be responsible, he has to be able to understand the evidence in Islamic Law on which his obligations are based. Although Islamic Law makes rationality the basic condition of competence and of assigning responsibility, sometimes the infliction of a penalty has other requirements.

In criminal justice, the criminal has to be mature and have free choice. In civil penal law, competence of performance is a condition for legal procedures to be started.

In material occurrences, penalty is imposed by force of law, because the consequences and obligations these occurrences entail are established by the statement that has prescribed the penalty, which makes being human the only condition for the penalty to apply.

From international data, it is clear that legislation related to psychological health is not limited to forensic psychiatry, but also extends to the various legal tools related to people whose conditions are diagnosed as mental disorders. What then are the rights and obligations of such people?

The Legal Position Chosen by the IOMS and Its Argument

The eleventh seminar, held in 1997, dealt with psychological health legislation and recommended that theories, applications, methods, and instruments of psychotherapy should be applied in accordance with the rulings of Islamic Law. The seminar's recommendations say:

The seminar concludes that efforts should be made to adopt an Islamic perspective in theories, applications, methods, and instruments of psychotherapy to make it compatible with rulings of Islamic Law and with the values and circumstances of Islamic societies. There are two categories that should be observed:

The first category: Principles of Extending Care to a Psychological Patient and the Rights of Such a Patient. This category consists of five principles::

The First Principle is that efforts should be augmented and made adequate for the maintenance of psychological health and prevention of psychological disorders.

The Second Principle is that every human being has the right to receive basic psychological health care.

The Third Principle is that the evaluation of psychological health should be compatible with recognized international medical principles.

The Fourth Principle is that when there is any need to restrict the freedom of patients with psychological and physical disorders as a precaution against any threat they may pose, this restriction should be minimal, and the necessary instruments should be provided to the patient to enable him to perform his religious obligations and take care of himself.

The Fifth Principle is that a patient should enjoy the freedom to choose for himself, and, therefore, his consent must be obtained for any medical intervention that concerns him.

The second category: Principles of Determining the Responsibilities of a Psychological Patient. This category consists of three principles:

The First Principle is that a psychological disorder affects an individual's civic responsibility if it causes him to lose the ability to distinguish good from evil, impairs his ability to make the right judgment, and results from a mental disorder, inadequate discretion, or a weakness of some self-control faculties.

The Second Principle is that a psychological disorder affects criminal responsibility if the psychological patient suffers, at the time of the crime, a mental disorder affecting his will, awareness, reasoning, or mood, and consequently impairing his ability to make sound judgments.

The Third Principle concerns the legal consequences of a disorder that affects responsibility: When it is established that a disorder affects responsibility, the patient's competence should be limited and he should be placed under a guardian who protects the patient's right to defend himself.

Remarks Concerning the Recommendations of the Twelfth

Seminar on the Rights and Obligations of the Handicapped

The IOMS chose to affirm the effect of psychological disorder on criminal responsibility. I support the position of the majority of scholars, which distinguishes between:

1. aggressive mental and psychological disorder, due to intoxicant and narcotics, and

2. non-aggressive mental and psychological disorder. Islamic Center of Southern California