Applications before the court concerning the degree to which a person without capacity should be assisted in observing Islamic religious custom and practice in a supported care home

Monday 31 July 2017

IH (Observance of Muslim Practice) [2017] EWCOP 9, 12 June 2017, Cobb J The first application was in respect of adherence to fasting during Ramadan and the second in respect of the trimming of IH’s axillary and pubic hair in accordance with Islamic cultural and religious practice.

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IH (Observance of Muslim Practice) [2017] EWCOP 9, 12 June 2017, Cobb J

The applications before the court concerned IH, a 39-year-old man. IH was born in Pakistan but had lived in West Yorkshire all his life. IH is described as suffering from a profound learning disability and functions intellectually at the developmental level of a 1-3 year old. IH also has atypical autism. IH had been cared for by his family, who are of the Sunni denomination of Islam, until three years ago. At the time of the Court of Protection proceedings, IH was living in full time residential care.

The first application was in respect of adherence to fasting during Ramadan and the second in respect of the trimming of IH’s axillary and pubic hair in accordance with Islamic cultural and religious practice.

The first application was allowed. All parties were agreed that IH should be not be required to fast during the daylight hours of Ramadan. IH had never been required to fast by his family, and had not fasted while in local authority care. The second application made by IH’s father was dismissed. Cobb J reflected on the expert evidence which stipulated that the legally incompetent person (along with the terminally ill, the disabled and minors) is “perpetually in a heightened state of spirituality”, therefore he or she is exempt from practising the major rituals of Islam.

Cobb J concluded that it was not in IH’s best interests for his pubic and axillary hair to be trimmed stating that “I have been advised, and it is accepted, that this is not required of him in accordance with the tenets of the Islamic faith; there is no other benefit to IH in undergoing this procedure, which carries avoidable risks of harm to IH and/or his carers were he to become stressed in the process”.

The court heard expert evidence from Consultant Psychiatrist Dr Peter Carpenter in respect of issues of capacity and from Dr Mansur Ali, lecturer in Arabic and Islamic Studies at Cardiff University on issues of religious and cultural practices within Islam.

The position of the local authority was that it recognised the importance of facilitating the religious observances for IH and although it was finely balanced it supported the father’s application.

The position of the Official Solicitor, on behalf of IH, was that whilst recognising the religious significance of the hair-trimming procedure for a person with capacity, as IH does not have capacity, there is no religious obligation or significance for IH in the procedure, and he is absolved by the tenets of the Islamic faith from any expectation of compliance. Further, there is a risk to IH in attempting the trimming that he or others will be harmed.

In determining the best interests of IH Cobb J considered inter alia the statutory guidance within the Mental Capacity Act 2005; the guidance offered by the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] 1 AC 591 and the expert evidence of Dr Mansur Ali in respect of the religious and cultural practices within Muslim life.

Comment:

This is a very interesting judgment, which is essential reading for anyone considering the issues of religious observance and incapacitious adults. This case illustrates the extent to which a person’s beliefs and values should be reflected in a residential setting and the application of best interests and substituted decision making.

This is illustrated by the local authority providing IH with a Halal diet even though IH is unaware of the food he ate was Halal or its religious significance. Further, it is important to note that cases such as these are fact specific and the particular tradition, denomination and particular circumstances of P will need to be carefully considered.

The full judgment is available: IH (Observance of Muslim Practice) [2017] EWCOP 9, 12 June 2017, Cobb J

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