Legal update – Court of Protection best interests decision and the observance of religious custom & practice


Re: IH (Observation of Muslim Practice [2017] EWCOP 9: Court of Protection provides guidance on best interests decision-making concerning observance of religious custom and practice

The Facts

IH is a 39 year old man with profound learning disabilities who resides in a supported living environment. He is of Pakistani origin and has been raised by his family in the Muslim faith. He spent the first 35 years of his life at home in the care of his family (described as devout followers of Islam). When living at home he participated, to the extent he was able, in the family’s religious practices and observances although he had no real appreciation of the religious significance of the rituals. IH moved into Local Authority supported housing in 2013 under a CCG funded care package. The Local Authority recognised the importance of facilitating IH’s religious observance albeit the care home was not culturally aligned to the Muslim faith and nor were this carers of that faith.

This case focused on two specific aspects of Islamic practice, namely, fasting during Ramadan and the removal of pubic and underarm hair. The Court of Protection was required to consider the extent to which observance of these practices was in the best interests of IH, who lacked capacity to make those decisions for himself.

There were two applications before the court:-

  1. An application by the Official Solicitor (acting for IH) for a declaration that it was not in IH’s best interests for him to fast during Ramadan
  2. An application by IH’s father for a declaration that it was in IH’s best interests for his pubic and underarm hair to be trimmed in accordance with Islamic practice (insofar as it was safe and reasonable to do so).

The court heard evidence from an expert in Islamic studies who explained that a legally incompetent person under Islamic law is perpetually in a heightened state of spirituality and therefore exempt from practising the major rituals of Islam including fasting during Ramadan. The trimming or removal of pubic and underarm hair is recommended practice for legally competent Muslims, but is not obligatory.

The first application was not contentious. All parties (including IH’s father) agreed that IH should not be expected to fast during Ramadan, indeed IH had never been expected to fast when he had been living with his family. The court heard that IH would not understand why food and liquid was being withheld during daylight hours. The absence of food and liquid would be likely to cause him distress which might in turn trigger irritable and/or aggressive behaviour thus increasing the risk to both himself and to his carers.

The second application was opposed by the Official Solicitor and the CCG. While living at home IH’s father had taken responsibility for his pubic/underarm hair trimming but after IH moved into supported living this fell into abeyance. IH’s father contested that it was his son’s ‘right’ to have this religious ritual performed and that if IH had capacity he would probably have performed it himself. As it had been over three years since IH had been subjected to hair removal, his carers expressed concern that if they were to perform the procedure he would suffer stress and could become agitated and aggressive resulting in injury to himself or to staff.

The position of the Official Solicitor, representing IH, was that whilst recognising the religious significance of the hair trimming procedure for a person with capacity, as IH lacked capacity, there was no religious obligation for him to undergo the procedure and there was a risk that either IH or others would be harmed if hair trimming was attempted.

The court’s decision

Mr Justice Cobb was satisfied that it was not in IH’s best interests to fast during Ramadan and, with the consent of all parties, granted the declaration sought by the Official Solicitor.

The best interests decision regarding the trimming of pubic/underarm hair was subject to a more detailed best interests analysis. The fact that IH lacked capacity to make this decision himself was not disputed. Cobb J considered the statutory guidance within the Mental Capacity Act 2005 (MCA) as well as the Supreme Court guidance in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67.

Reciting MCA s.4, Cobb J acknowledged that in determining IH’s best interests he was required to have regard to a wide range of relevant circumstances including:-

  • IH’s past and present wishes and feelings;
  • the beliefs and values that would be likely to influence his decision if he had capacity;
  • the other factors that he would be likely to consider if he were able to do so; and
  • the views of his family and his carers.

Cobb J also relied upon the Supreme Court guidance in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 namely that :-

  • the best interests test should contain a strong element of substituted judgment – the preferences of the person concerned are an important component in deciding where his best interests lie
  • the person’s best interests should be considered in a holistic way
  • decision-makers must look at the person’s welfare in the widest sense – not just medical but also including social and psychological
  • the purpose of the best interests test is to consider matters from the person’s point of view – but that is not to say that his wishes must prevail.

Cobb J stated that health and social care bodies, when making arrangements for the care of adults who lack capacity, own an obligation, so far as is reasonably practicable and in the interests of the individual, to create a care environment and routine which is supportive of their religion and which facilitates their access to and observance of religious custom and ritual (this is consistent with Article 9 ECHR). They (and the court) must, when making best interests decisions on behalf of someone who lacks capacity, take into account their reasonably ascertainable beliefs and values which would be likely to influence their decision if they had capacity, including relevant religious beliefs and values.

Based on the evidence heard from the expert in Islamic Studies, Cobb J was satisfied that there was no Islamic religious obligation on IH to trim or remove his pubic/underarm hair, or any obligation on his carer to do so on his behalf. He was also satisfied that IH derived no religious benefit from undergoing this ritual as he could not understand its religious significance. Although Cobb J accepted the father’s view that if IH had capacity he probably would have observed this custom, this was not a relevant factor given that, as an incapacitated person, he was exempt from observing the ritual in the first place. IH was not able to express any reliable view on the issue himself – therefore this was not a case where reference could be made to IH’s previous wishes and feelings as his disability had been lifelong.

While Cobb J carefully considered the views of the family and attached significant weight to those views, he noted that IH’s father had not himself taken an absolute view of religious observance for IH in the past. His father recognised that in some important respects it was impractical for IH to follow the Islamic faith where the disadvantages of observance of certain religious ritual outweighed the advantages. Cobb J was also reassured that IH’s family and his wider community would not think less favourably of IH if the hair trimming was not undertaken given that it had not been undertaken for the last three years and there was no discernible change in the family’s attitude towards him.

After carefully weighing all of the above, Cobb J expressed that he was anxious to spare IH the additional stresses to his life from hair removal (a procedure which IH neither understood the religious significance of nor derived any religious benefit from) and wanted to protect him and the staff from an avoidable risk of harm. Cobb J concluded that it was not in IH’s best interests for his pubic or underarm hair to be trimmed.

Key points arising from this case

Care providers and commissioners should:-

  • ensure that care packages for persons lacking capacity facilitate observance of their religious customs/rituals where it is reasonably practicable to do so.
  • ensure that religious customs/rituals are assessed to ensure that there is a benefit to the incapacitated adult balanced against any avoidable risks associated with the ritual to both them and their carers.
  • ensure that religious customs/rituals are a assessed on their merits in each individual case – every case will turn on its own facts and the risks and benefits associated with a particular custom/ritual will vary from case to case.

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk.


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