Rules of general human recording

Muslim jurists’ rulings on human recording vary from permissible to discouraged and forbidden.19 However, the ruling is ultimately dependent on the purpose of the recording, the intended use of the images, the way in which the recording session is conducted, the type of images captured, and potential consequences of the whole experience. For images to be deemed permissible, all of the aforementioned circumstances must not contradict the Shari'ah (Islamic legal system). Figure 1 summarises the criteria considered in order to reach a verdict on the ethical status of clinical visual recording in Islam.

• Download figure
• Open in new tab
• Download powerpoint

Figure 1

Summary of the criteria that must be considered in making a decision on the ethical status of clinical photography in Islam.

The first principle of law in Islam (qawaid al-fiqhiyyah) states the importance of the underlying intention in determining the ethical status of an action.20 ,21 The intentions of the recording and intended use of the images must be positive from the Islamic viewpoint. Intentions that are deemed negative from the Islamic standpoint would make illegal the recording and use of the images, such as the intention to share photographs with unauthorised individuals, to humiliate the subjects, or other negative intentions. Islamic code of conduct must be observed during the recording sessions, where the rules of modesty and cross-gender interaction apply, which will be discussed in the next section. The consequences of the whole experience are also weighed against the benefits of the process and use of images, where the lesser of two harms is opted for as the ethical choice. This is based on the third principle of law that states that harm must be eliminated.20 ,21

Rules of modesty and cross-gender interaction

Awrah is a body part that is forbidden to be shown to specific individuals, either in person or in photographs. There are various rulings regarding one's awrah before entering adulthood. Al-Zuhaili22 is more inclined towards the rulings of pre-adult awrah that is divided into three categories; under 7 years, between 7 to 10 years and above 10 years. Children under the age of 7 have no awrah while those above 10 years old have awrah similar to adults (if there have not entered adulthood by then). The awrah of boys between 7 to 10 years are the external genitalia and anus, whereas the awrah of same age girls are the trunk, arm and thighs. In Islam, adulthood is indicated by one of the following signs (whichever appears first)22:

1. Menstruation.

2. Pregnancy.

3. Ejaculation.

4. Presence of pubic hair. (Signs 1–4 are only valid when the individual has reached at least 9 Islamic lunar years of age.)

5. Attaining 15 Islamic lunar years of age. (Certain scholars assert the upper limit of 17 or 18.)

The awrah of a man in circumstances where he can be seen by other humans is between navel and knee. A woman's awrah is the whole body except the hands and face,23 ,24 and some scholars also include the feet22 when she can be seen by non-mahram (marriageable individuals of the opposite sex). However, Muslim jurists differ in the ruling on the awrah of a Muslim woman when she can be seen by non-Muslim women; some have ruled that it is similar to the awrah in the case of non-mahram, while others have ruled that it is similar to the awrah when she can be seen by Muslim women (between navel and knee).22 ,23 Touching the non-mahram is also forbidden. When two non-mahram individuals of the opposite-sex are together in an enclosed space, a chaperone is necessary to avoid impropriety—actual or alleged (khalwah).23 ,25 The chaperone can be the subject's spouse, mahram (unmarriageable relatives) or a trusted lady,25 who can be a proactive witness who can stop unnecessary inappropriate acts from continuing. These rules are pertinent to both live and deceased subjects.26 However, these rules can be transiently relaxed during threatening circumstances (darurah) to avoid greater harm such as severe pain or death. This follows the fourth Islamic principle of law, where extreme circumstances countermand what is ordinarily impermissible when the permissible alternative is unavailable.20 ,21 Nevertheless, this relaxation is restricted to the essential extent of preserving the absolute necessities of human life (al-daruriyyah)27 as described in the six Purposes of Law (maqasid al-shariah), which are preservation of religion, life, intellect, progeny, property and human dignity.28 Al-Zuhaili27 also specified that, for medical cases, the need to act outside what is ordinarily permissible must be certified by a trustworthy Muslim doctor whose knowledge and piety is respectable, in addition to the above aforementioned criteria. Therefore, using awrah-exposing human images for biomedical research, clinical care and academic purposes may be justified if a trustworthy Muslim specialist certifies that the course itself is essential and there is no alternative method that would serve the same purpose, such as merely describing the condition in written form with or without illustration. In contrast, non-awrah-exposing recordings may be used for other non-requisite purposes that do not contradict Islamic teaching, such as for health education posters or pamphlets that are intended for public distribution.

In the context of biomedical recording, the four following questions relating to awrah have to be considered.

1. Who is present during the recording session?—The rules of avoiding khalwah and chaperoning apply. If the session involves exposure of awrah, only personnel who are essential for unimpeded performance of the procedure should be present.

2. How much is exposed?—The subject's awrah must be covered except when exposure is necessary in darurah situations. If the awrah must be exposed, only the minimum necessary area is uncovered at one time.

3. How much is visually recorded?—Awrah and unique personal identifiers must not be visually recorded. If this is essential, only the minimum necessary part may be recorded.

4. Who can view the images?—The data must be retained in a secure environment with restricted access. Visual recordings of awrah parts and unique individual identifiers may be seen only by essential personnel in the research, clinical care or academic programme.

Rules of informed consent

The principle of autonomy is understood to be a universal principle with some degree of theoretical and practical variance across different cultures and religions.29 Although the principle of autonomy is acknowledged in Islam,29 ,30 the right is restricted by Islamic law. Autonomy is only applicable for actions that are permissible in Islamic teachings where an individual should not inflict on himself, his own property and honour, actions that are deemed forbidden, as the rights of God supersede individual rights.29 An individual's right to autonomy may also be limited by societal rights, which are given greater emphasis and priority in Islam.29

The Islamic law regarding contract (al-‘aqd) has been exhaustively discussed by Muslim scholars. In summary, the rules pertaining to entering into an agreement or contract are as follows.30–32

1. Sighah (method of manifesting the intention to contract) is divided into ijab (offer) and qabul (acceptance). Sighah may be performed verbally, in writing or implied (by action), and must fulfil the following criteria:

   1. Comprehended by all parties involved. An interpreter may be beneficial in obtaining informed consent from patients whose native language is not that used in the contract.

   2. Offer and acceptance are congruous and occur simultaneously in one event.

2. The contracting parties (all parties involved in the contract) must fulfil two conditions:

   1. All parties must maintain full legal consenting competency until acceptance of the contract is confirmed. A person who has reached puberty and maturity (al-rushd), and is not mentally challenged, insane, unconscious or drunk, retains full competency. For temporary incompetency, the contract must be delayed until full competency is regained. If the contract cannot be delayed or the incompetency is permanent, decisions are made by the guardian or the judicial authority.

   2. All parties must act autonomously without coercion.

3. The subject matter of the contract can either be an item or a service, and must fulfil the following criteria:

   1. It is recognised as having a value that is recognised from the Islamic viewpoint.

   2. It is legal in civil law and Islamic law.

   3. The item or service exists and belongs to the offering party. The offering party has the ability to transfer possession of the item or execute the service.

   4. There is a detailed definition concerning the quantity, quality, characteristics and value of the contracted item or service which is known to all parties to the extent that it will avoid any dispute between the parties. Thus, for clinical recordings, the subjects must be properly informed with material information regarding the procedure, including the purpose, process, body parts that will be recorded, withdrawal of consent, data storage, data retrieval, copyrights and specific uses of the images.

Rules of maintaining confidentiality

Protecting confidentiality has a vital significance in Islam. A number of revelation texts in the Quran and Hadith accentuate the importance of avoiding negative conversations about other people in their absence (backbiting) even if the facts discussed are true and even after they have died (Sahih Muslim,33 Al-Hujurat 49:1234). These acts are analogous to eating deceased human flesh (Al-Hujurat 49:1234), and committing such an act would incur suffering in the ‘Hereafter’ (Bukhari,35 Sunan Abu Dawud36).

Showing subjects’ clinical physical signs through recorded images may be vital in training future health professionals. As stated, it may become permissible with consent from the particular patients, where an explanation is given of how it will be used in lectures or for publication. Even if a patient has consented, the images should be used with discretion and only for essential purposes and audiences. If absence of the images does not impede the intended cause, then they must be omitted.

In specific circumstances in Islam, an individual can be lawfully authorised to release negative information about specific individuals. One such circumstance is disclosing confidential information when a legal verdict regarding a situation is sought. Certain circumstances demand breech of patients’ confidentiality in order to protect a number of other individuals or society as a whole. Breach of confidentiality under these circumstances may be justifiable in Islam for the greater benefit (maslahah). Examples include reporting probable criminal acts (such as domestic violence, assault or child abuse), serious communicable diseases or conditions that threaten others’ lives (such as epileptic patients who work as drivers).37

Comparing Islamic and conventional standards for clinical photography

The two ethical standards differ with regard to some criteria, but also share certain similar measures. The rules of informed consent and maintaining confidentiality are analogous in the two ethical standards. The conventional standards of avoiding unnecessary touching and minimising the photographed area are akin to those of Islam. Conventional standards strongly recommend the use of a chaperone in the presence of semi or fully naked subjects of the opposite sex, while the Islamic standard obligates the use of chaperones whenever a photographer is dealing with a subject of the opposite sex in an enclosed space, regardless of the extent and area of exposure. Conventional standards also limit images of the perineum and female chest to use for clinical records and closely controlled biomedical teaching, whereas, in Islam, this restriction is extended to all body parts that are considered awrah. Although conventional standards limit clinical photography to requisite situations, the Islamic definition of ‘what is requisite’ is more stringent when awrah is involved.