What is the ruling on post mortems (autopsy), particularly those requested by thepolice?

ISLAM AND THE AUTOPSY
Mahomed A. Dada, MB ChB, MMed (Forensic Path), DOM, MMed (Anat Path), DABFE, DABFM, FRIPHH.

Professor and Head of Department of Forensic Medicine, University of Natal.

JIMASA-DEC 1998/RAMADAAN 1419 VOL4, NO3
"Wherever you may be death will overtake you, though you remain even in lofty towers."(Quran 4:78)

The death of a patient can be as devastating to a physician as it is to the family of the deceased. A good physician needs to know how to break the news of such an event to the family and by his knowledge of his patient will be able to provide information to help the family in their hour of need. In the case of a death of a Muslim patient it is essential that the doctor understand the religious and cultural aspects of burial and attitudes towards the autopsy.

Ignorance of South African law and myths about the autopsy has led to prolonging the grief of bereaved families and has prompted us to write this article which we hope will clarify some of the problem issues and be a focus for further discussion. It is the duty of the medical practitioner to issue a death certificate (Form BI-1663, previously BI-12) on the death of his patient. The certificate must be issued immediately. In order to fill in the death certificate correctly, the doctor must classify every death according to its cause; that is, natural or unnatural (see below for discussion). If the death was due to a notifiable disease then the doctor must immediately notify the local health authority.1

This differentiation between deaths due to natural or unnatural causes has far-reaching legal consequences for the deceased's next of kin, for example, whether there is to be a police inquiry leading to a criminal and/or civil action. This decision may not always be easy, and what may appear as natural causes may not be so, or vice-versa. An incorrect choice could have major impact on the deceased's family in terms of possible exhumation being carried out or failure of insurance companies to pay out policies on the deceased's life. Most problems arise because of confusion about the formulation of the cause of death and the death certificate.

WHAT IS UNNATURAL DEATH?
The distinction between natural and unnatural death is difficult and to some extent based on convention within our society rather than rules of law. There is no definition of what is natural or unnatural death ("anaesthetic death" being the one exception) and the doctor or magistrate must use medical evidence and opinion together with the current values of our society to make a judgement on the issue. By convention, if the following aspects are present a death may be classified as unnatural.

"External Factors"
Deaths due to the application of force on the body and physical and chemical factors. These include:
* physical factors - heat, cold, radiation
* chemical factors - chemical surface burns/ingestion of drugs and poisons * mechanical factors -road traffic accidents, gunshot wounds, assaults

The force applied may be direct or indirect, with or without complications, e.g. urinary tract infection and septicaemia occurring 13 months after motor vehicle accident in which there was spinal cord damage and paraplegia.

"Anaesthetic Deaths"
Deaths in terms of Section 56 of the Medical, Dental and Supplementary Health Services Professions Act, 1974, (this is that one exception), which states:

"If a person dies under the influence of a local or general anaesthetic or where the administration of such an anaesthetic may have played a role in the death of the deceased, such a death is not regarded as natural and must be reported to a police officer".

In order to determine whether a death will fall under the above category, it is necessary to ask the following pertinent questions:
a) Was the patient under the influence of local or general anaesthetic?

The answer will depend on the clinical impression as to whether the patient was able to act consciously or not. That is, if the patient has recovered consciousness, or has been restored to the condition he or she was in prior to the administration of the anaesthetic, that anaesthesia is not responsible for the subsequent death of the patient. However, in some cases, anaesthesia may contribute to delayed deaths e.g. liver failure induced by the administration of halothane. As long as a causal relationship exists between the administration of the anaesthetic and the death, the death cannot be considered to be due to natural causes.

b) Did the anaesthetic play a contributory role in the death of the patient?

If the patient would not have died had an anaesthetic not been administered, it must be taken for granted that the anaesthetic contributed to the death. Deaths due to the disease/injury for which the patient originally presented and deaths due to surgical mishaps, blood transfusion reaction and idiosyncratic drug reactions are still regarded as " anaesthetic death" as long as it is deemed that the patient was still under the influence of the anaesthetic.

c) Is there a time period for a death to be classified as an "anaesthetic death"?

Contrary to popular belief among clinicians, there is no time limit to the definition of an anaesthetic death (No 24-hour rule).

d) What about deaths associated with diagnostic and/or therapeutic procedures?

Deaths due to diagnostic/therapeutic procedures are grouped under the "anaesthetic deaths"; i.e. unnatural deaths. These deaths may well fall under the "act or omission" criteria of unnatural deaths described below.

SUDDEN AND UNEXPECTED DEATHS
Where a medical practitioner is unable to provide a death certificate of natural causes; e.g. the practitioner has not treated the deceased whose death was not only sudden and unexpected but also unexplained. These deaths regarded as "unnatural" until the pathologist, on the basis of an autopsy or more information from the police and/or family, may certify the death as being due to a natural cause.

ACTS OF COMMISSION OR OMISSION
Death, normally considered being due to natural causes, but which in the medical practitioner's opinion was caused by an act (of commission) or (act of) omission on the part of a person or persons, e.g. failure of a medical practitioner to treat a non-fatal condition and where such an omission contributed to the patient's death. There is no time limit within which an injury or incident may only be related to subsequent death. In other words, no matter what the interval of time elapses between an injury and subsequent death, as long as there exists a causal relationship, then the death cannot be regarded as natural.

Death, in a case where a specific act of omission is suspected, must be considered to be as a result of unnatural causes, and must be reported to the magistrate. The magistrate, and not the medical practitioner, must then decide whether the act or omission by the person concerned involved or amounted to an offence. The above applies most often to deaths under medical treatment.

Here again, the doctor is empowered to use his professional discretion, e.g. in meconium aspiration following foetal distress, as a result of delayed labour perhaps because the doctor did not refer the mother timeously to hospital for expert attention (negligence), may be regarded as unnatural.

THE NEW DEATH CERTIFICATE (BI 1663)
Recently, the new death certificate was introduced in a two-page format. The first page will have demographic details of the patient and will simply state whether the death was due to natural or unnatural causes.

The second page of the new certificate will contain the complete diagnosis. At present the 2nd page is placed in an envelope and stapled to the first page and handed to the person registering the death. This will prevent disclosure of the cause of death to unauthorised persons. A perceived advantage of the new form is that diagnoses such as AIDS can be written on the death certificate with the assurance that unauthorised disclosure will not stigmatise the family of the deceased.

CAUSE OF DEATH (COD) STATEMENT (Part G, Page 2 of BI-1663)
The Underlying Cause of Death (UCOD) has been defined as "(a) the disease or injury which initiated the train of morbid events leading directly to death, or (b) the circumstances of the accident or violence which produced the fatal injury".

It is the underlying cause of death that will determine whether a death is natural or not. Part 1 is formatted so that sequential information is reported with one condition per line, starting with the most recent condition on the top line and going backward in time on progressively lower lines. Each condition can cause the one on the line above it. It is not always necessary to use all of the lines in Part 1. Although rarely needed, extra lines may be added. The top line (A) should always be used. Part 2 is for any other significant condition (Contributory cause) that contributed to the fatal outcome, but was not related to the disease or condition directly causing death.

The above terms must be differentiated from:
* manner of death which refers to the circumstances of how the cause of death arose (natural, accidental, suicide, homicide, iatrogenic or undetermined)
*mechanism of death which refers to the physiologic derangement or biochemical disturbance produced by a cause of death e.g. in a stab wound of the heart (cause of death), the mechanism of death may be cardiac tamponade or hypovolaemic shock. Many practitioners mistakenly attribute the cause of death to the mechanism of death.

GUIDELINES TO THE COMPLETION OF THE CAUSE OF DEATH STATEMENT (1) Make every effort to report an etiologically specific underlying cause of death.
(2) Try to use a Sequential Part 1 Format, if possible.
(3) Err on the side of reporting too much rather than too little. (4) DO NOT report symptoms or signs.
(5) DO NOT report a condition if its existence in the patient is obvious based on another reported condition.
(6) DO NOT oversimplify
(7) DO NOT use abbreviations
(8) DO NOT report mechanistic terminal events such as:
* cardiac arrest
* asystole
* cardiopulmonary arrest
* respiratory arrest
* electromechanical dissociation
* ventricular fibrillation

MATERNAL DEATHS
The World Health Assembly (1990) adopted a recommendation that countries should consider the inclusion on the death certificate of questions about the current pregnancy and pregnancy within one year preceding death. As a result legislation was passed on 3rd October 1997 making it mandatory to report all maternal deaths. A National Committee for the Confidential Enquiry into Maternal Deaths has been established to perform confidential enquiries into maternal deaths. A detailed questionnaire has been developed by the Department of Health and is to be filled in by all health care personnel involved.

PROBLEMS WITH EXAMINATION OF THE BODY IN ISLAMIC LAW

1. Consent for an autopsy
The Bill of Rights guarantees the right to freedom of conscience, religion, thought, belief and opinion.2 This right is not absolute and may be suspended for the benefit of the community or for the pursuit of justice. In unnatural deaths, consent from the family is not required as the autopsy is carried out on the instruction or order of a legal authority (magistrate) and the examination is directed towards the public good.3

In the case of natural deaths consent may be given by the deceased him/herself before death by way of a will (testament), orally before two witnesses who must be older than 14 years of age or by the wearing of an identification bracelet/tag such as "Medic-Alert". Alternatively, the attending doctor may requests an autopsy to determine more precisely the cause of death or for a specific scientific purpose.4 Authorisation is obtained from the magistrate, doctor in charge of the mortuary or a person designated by him/her, or the superintendent of the hospital/institution concerned. Consent from the family is not a legal prerequisite for an autopsy in the case of a natural death. It is for ethical reasons that we approach the family for permission for a post-mortem examination. In the case of a Muslim patient permission from the next of kin must be obtained in the following order of priority:5
1. father, son, mother
2. siblings, wife, grandfather, grandson
3. paternal and maternal uncles cousins
Although the wife may not be a blood relative she is given a high ranking as one would logically expect. We must at all times try to respect the families' religious and personal beliefs. "Overriding" the family's objections is only warranted for the greater good of the community at large and for statutory and medico-legal reasons. This feeling was echoed by the Fatwa Committee at Al-Azhar (January 1982) who concluded that if medical students learn from post-mortems, if justice prevails through them and if contagious diseases can be controlled through them, then benefits indeed outnumber damages, provided that these examinations are performed only when necessary.6
2. Are we violating the sanctity of the human body by performing a post-mortem?
"The breaking of the bone of a dead person is like breaking the bone of a live person"(Imam Ahmad bin Hanbal)
In the "Al-Jawaab" column in the An-Noor, a bimonthly Islamic publication, an unnamed author makes a passionate attack on the practice of the autopsy and describes it as a "crude, futile and dishonourable practice of mutilating the human body".7 He goes on to regard the autopsy as part of the conspiracy on the part of the "non-Muslims" against Islam. In the entire discourse no attempt is made to refer to any fatwa or other form of reference.
Some 'ulama' often confuse muthlah as meaning mutilation occurring with an autopsy. The autopsy, carried out under the instruction of a legal authority, is a scientific examination of the dead body by a medical practitioner with the aim directed towards the public good. Whereas, the term muthlah refers to the malicious desecration of a body because of hatred as was the case with the body of hadrat Hamza (r.a.) by Hindah; who made a garland from the nose and ears of his dead body.
In an Islamic judicial system an autopsy is not necessary if the accused confesses to murder before the judge. However, most murderers will try to destroy evidence of their crime to try to make the death appear as suicide. In these cases it would be necessary to conduct an autopsy to determine the cause and manner of death,8 which under the circumstances, would be permissible by Islamic Law.
In the South African situation as it is in most countries that are not governed by Shariah law, it is mandatory to do a post-mortem examination on all cases of unnatural deaths and in some cases of natural deaths. This is not something new, as the Islamic legal maxim, "necessity permits the forbidden" was invoked to investigate crime in the days of Averroes [Ibn Rushd], Avicenna [Ibn Sina] and Rhazes [Razi] [10-12 C]. Furthermore, dissection of cadavers in Departments of Anatomy are permitted Islamically, and the janazah (funeral) salah (prayer) is delayed until the body has taught the dissector what he/she needs to know.
3. Should the burial be postponed so that an autopsy may be performed?9 "Hasten the burial of the deceased" (Hadith)
It is commendable that after death of a Muslim his dead body should be buried as soon as possible. Unfortunately, the performance of an autopsy will cause a delay in the burial of the deceased and will result in the body being transferred from place to place. Sympathetic treatment by the police and the Department of Health staff has now reduced this delay to a minimum due to a 7-day a week autopsy service now being in place in most centres. The Islamic Ruling is to bury the dead as soon as possible, but there is always an exception to the rule. Thus, if there is any compelling reason to delay the burial, it can be done. The neccessity of carrying out an autopsy would be one of the exceptions to the rule.
ACKNOWLEGEMENTS
The author wishes to thank the following persons for their assistance: Prof. SS Nadvi, Head of Department of Islamic Studies, University of Durban-Westville, Dr SR Naidoo, Department of Forensic Medicine, University of Natal, Dr S. Sameer Nadvi, Head of the Department of Neurosurgery, University of Natal and Ms Jo Clarke, Barrister, London.

REFERENCES
1. Health Act (Act 63 of 1977).
2. s15, The Constitution of the Republic of South Africa, Act 108 of 1996. 3. Inquest Act (Act 58 of 1959).
4. Hussain, W. "Post-Mortem Examination: The Qur'anic View" in Al-`Ilm. Journal of Islamic Studies. University of Durban-Westville. 1994; 14:34-40. 5. Ghanem, I. "Permission for Performing Autopsy: The Pitfalls in Islamic Law" in Med. Sci Law. 1988; 28:241-242.
6. Majallat al-Azhar. 1982 Jan:650.
7. Anon. The Practice of Post-Mortem. An-Noor. 1997; 12:4.
8. Hussain, W. "Post-Mortem Examination: The Quranic View" in Al-`Ilm. Journal of Islamic Studies. University of Durban-Westville. 1994; 14:34-40. 9. Ripler-Chaim, V. The Ethics of Post-Mortem Examinations in Contemporary Islam. J Med Ethics. 1993; 19:164-168.