Briefing 219

October 2017

Mental Capacity Act 2005: Summary and Learning from IH
(Observance of Muslim Practice) [2017]
 

Context 

In August 2016 IH’s father made an application to the Court of Protection seeking a declaration that it was ‘in the Best Interests of IH to have his pubic and axillary hair trimmed in accordance with Islamic cultural and religious practice insofar as it is safe and reasonable to do so’. In February 2017 a further declaration was requested by the Official Solicitor, that it was also ‘not in IH’s Best Interests to fast during the daylight hours of Ramadan’. 

This case is significant because it represents the first reported Court of Protection judgement on these issues. 

This briefing is a short summary of the case, judgement and learning for practitioners working with the Mental Capacity Act. 

To read the full judgement, see http://www.bailii.org/ew/cases/EWCOP/2017/9.html 

Background 

IH is a 39 year old man of Pakistani origin with profound learning disabilities, Autism and complex health needs. 

Until he moved into his tenancy in 2013 IH lived in the family home. He had grown up within the Sunni denomination of Islam in a household that was described in Court papers as ‘devout’.  IH participated in (to the extent that he was able to) and was exposed to the routine Islamic religious practices and observances of his family throughout his life. These were acknowledged as practices that would have been routine and familiar to IH. One such practice was the shaving of his pubic and axillary hair, which was a task carried out by his father with no apparent objection by IH. 

There were some practices that IH did not participate in, which included daylight fasting during Ramadan and attending the Mosque (which was an activity ceased due to the impact of IH’s behaviour on other worshippers). 

When IH moved from the family home his father continued to shave his pubic and axillary hair for the next 12 months.  IH’s father then wished for his support workers to assume the task, and the Local Authority was in support of this (being of the view that if IH had capacity he would probably partake in this familiar practice). However, the support workers and the Clinical Commissioning Group (who funded the care) disagreed and did not feel that this was in IH’s Best Interests, and that the risks to IH and carers was too high. 

IH’s Capacity 

A Consultant Psychiatrist for Learning Disabilities presented evidence regarding IH’s capacity in regard to both matters and there was no disagreement that IH lacked the capacity to make decisions relating to any aspect of his religion under the Mental Capacity Act (or that he would be able to make such decisions in the future). 

However, an expert in Islamic law confirmed that for IH to be exempt from the tenets of the Five Pillars and assessment of capacity under the Mental Capacity Act in itself this was not sufficient. He explained that IH would need to be deemed ‘legally incompetent’ under Shari ‘a: 

‘Not having a capacity or a potential for mental functioning, required in a decision-specific manner, to understand and carry out decision-making. Competence is always presumed; its absence or inactivity has to be affirmed by a court’. 

The expert explained that evidence must be presented to a Court by a medical professional or expert on the issue of legal competence. When asked if the evidence provided to the Court by a Consultant Psychiatrist in Learning Disabilities would be adequate for this purpose, the expert was able to confirm that it was, and that the threshold for ‘legal incompetence’ was met, meaning that IH was exempt from practising the rituals of Islam. 

IH’s Father Position 

IH’s father was anxious that IH should adhere as fully as possible to the tenets of the Islamic faith, and to follow (to the extent that this was possible) religious observance and custom. 

He, along with IH’s mother stated that they would expect IH to: 

  1. Celebrate Eid with his family;
  2. Eat Halal food; and
  3. Participate in the removal of underarm and pubic hair as an essential and compulsory part of his faith.  

On the matter of fasting, early into the hearing IH’s father accepted that, due to his legal incompetence IH should not be expected to fast during Ramadan, meaning this particular issue was swiftly resolved. 

IH’s father had worked with the Local Authority and they were proposing a revised Care Plan, which involved using an electric razor (rather than a disposable razor) to trim the hair (rather than shave it completely), and that this would only be carried out when IH was amenable. In addition the plan involved up to 3 support workers being available to manage any risks associated with behaviour that could occur. 

The Local Authority’s Position 

The Local Authority supported the proposed revised Care Plan ‘on fine balance’, and the key social worker told the Court: 

‘Islam is a significant part of IH’s identity. He has been bought up in a Muslim household and has observed the character of that religion throughout his childhood and as an adult until his placement away from home. It is his culture and his background and something of which he should be proud of…. the observance of religious practices should be supported where possible to allow a person to continue to associate with their identity, background, culture and beliefs’. 

The judge spoke positively about the Local Authority’s general position insofar as it recognised the importance of religious practices. However, he did observe that the views of the social worker did not seem to acknowledge the specifics of the case, particularly IH’s inability to: 

  1. Understand the concept of Islam;
  2. Associate himself with Islam; or
  3. Feel ‘proud’ about his religious and cultural heritage. 

As the case progressed it became clear that the Local Authority position was based on a view that: 

  1. Removal of pubic hair was a cultural need for a Muslim; and
  2. That having hair would negatively identify IH as a person with a learning disability within the Muslim community; and
  3. As the case progressed evidence was heard that both these beliefs were incorrect assumptions. 

Information Provided by the Religious Expert 

In seeking to better understand the beliefs of IH’s father and obligations under Islamic law, the judge sought the views of a lecturer in Islamic Studies, who was able to explain that: 

  1. Cleaning pubic or axillary hair is deemed to be a fitrah (normal human right);
  2. The removal of hair is seen as part of the quest for ritual purity and cleanliness;
  3. The removal of hair is recommended practice (as opposed to obligatory practice);
  4. It is highly recommended and praiseworthy for carers to shave or shorten a person’s pubic hair, in the same way as it is for them to carry out other care tasks;
  5. Whilst it is recommended and praiseworthy for carers to shave hair, if the person being shaved is not legally competent there is no obligation of carers to do so; and 
  1. ‘No hurt, no harm’ is a cardinal principle of Islamic ethics, meaning it is wrong to create a situation where the observance of an Islamic custom would be likely to cause harm to the person or carer. 

The Position of the CCG, Support Worker and Official Solicitor 

The position of the Official Solicitor and the CCG 

After hearing all of the evidence, it was the view of the Official Solicitor representing IH that it was not in the Best Interests of IH to have his pubic and axillary hair trimmed because: 

  1. IH lacked capacity to make decisions regarding his religion;
  2. The practice of shaving is not obligatory practice, only recommended;
  3. The practice of removing hair bore no religious significance to IH (due to his lack of understanding); and
  4. IH was not obligated to comply under Islamic law because of his legal incompetence. 

The judgement reports that the CCG shared similar views to the Official Solicitor. 

The position of the support worker 

The support worker who was to have primary responsibility for trimming IH’s hair had completed a risk assessment indicating the following risks: 

  1. Risks to IH from becoming agitated causing harm/injury to self;
  2. Risks to staff from outbursts of known aggression; and
  3. Injury to IH from the equipment to be used. 

Initially the support worker felt that the risks were worth taking and that trimming hair was in IH’s Best Interests, although as the hearing progressed their view changed.  

The Judgement 

The judge presiding, Justice Cobb declared swiftly that it was not in IH’s Best Interests to fast on Ramadan on the basis that: 

  1. There was no Islamic obligation for IH to fast due to his legal incompetence;
  2. IH had never fasted before, while in the care of his family or the Local Authority;
  3. IH had no appreciation of the religious significance of fasting;
  4. IH would not understand why water and food was being withheld, and this would likely lead to an increase in distress and behaviours; and
  5. There could be a risk to the effectiveness of his medication from dehydration. 

In respect of the proposal to trim pubic and axillary hair, Justice Cobb declared that this was also not in IH’s Best Interests on the basis that: 

  1. There was no Islamic obligation for IH to observe Islamic rituals due to his legal incompetence;
  2. IH was not, and had never been able, to express a reliable view on the issue;
  3. IH would likely not be treated any less favourably by his family or community if he did not shave - he would continue to be much loved;
  4. If the proposed procedure for removing hair were to go ahead IH might find staff levels overcrowded, claustrophobic, and anxiety-inducing; and
  5. If the proposed procedure for removing hair were to go ahead it could compromise IH’s dignity.  

The judge described the complexities of the decision, and the significance of IH’s religious history and families views, and also not being able to ascertain IH’s own views, either past or present. 

Learning from the Judgement 

The judgement highlights the on-going complexity in the area of Best Interest decision making, and carries specific learning for social care practitioners: 

  1. Based on the lack of an objection, do not make assumptions about a person’s likely wishes and feelings;
  2. Make sure that your beliefs are grounded in evidence and not based on the subjective views of others;
  3. Don’t generalise-consider the case and circumstances in hand. 

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