This case will be of interest to commissioners and providers when considering an individual's best interests in circumstances where P lacks capacity to make decisions about religious customs and practice.
IH (Observance of Muslim Practice)  EWCOP 9
- Best Interests Decision-Making
- Religious Customs and Practice
- Article 9 ECHR – right to freedom of thought, conscience and religion
- "Relevant Information" for capacity to decide whether to conduct religious practices/customs.
- Decision-makers should:
- explore the requirements and obligations of any proposed religious customs/practice to determine whether there are any relevant exceptions or limitations;
- differentiate between family's wishes and feelings in respect of P's religious practices (i.e. what they would want for P) as opposed to P's wishes and feelings of those religious practices – applying the appropriate weight to each;
- consider P's understanding and experience of the religious customs and practice as religious experiences as opposed to practices he/she has experienced as being part of family-unit that actively practices the religious customs.
- Commissioners and providers should, as far as is reasonably practicable, support religious custom and ritual where it is in the best interests of the incapacitated person;
- The risks and benefits of religious rituals/customs will vary depending on the case of the individual intending to practice them;
- Care planning must take into account all information about religious/cultural practices - but this must take into consideration the associated risks of harm, including ascertaining the requirements and limitations of the practice.
Mr Justice Cobb
IH is in a supported living placement, provided by the Local Authority and commissioned by the CCG. His family, with whom he had lived until 3 years ago, are practicing Sunni Muslims. The application concerned to what extent it is in IH's best interests for him to be supported to actively practice two of the Islamic customs and practices:
- Fasting during Ramadan – by the time of the final hearing, no party was contending that this practice was in IH's best interests; and
- Removing IH's pubic and axillary hair – a practice his father had performed for him all of his life.
All parties agreed that Islam provides an exception to the requirement to fast during Ramadan for those who lack "legal competence" and that as IH had never fasted previously, it was not in his best interests to do so.
Judge determined that it was not in IH's best interests to have his pubic and axillary hair removed/trimmed as:
- It was not an absolute requirement of the Islamic faith;
- IH becomes distressed during the process – placing himself and his carers at risk; and
IH himself derived no benefit from him – as he lacked capacity and had no understanding of the religious context of the practice.
IH is 39 years old. He was born in Pakistan but has lived in West Yorkshire all his life. He is from a Punjabi family. He suffers from a profound learning disability, and functions intellectually at the developmental level of a 1-3 year old. He also has atypical autism. He currently resides in a supported living environment which is provided by the Local Authority and commissioned by the local Clinical Commissioning Group. He has been raised by his family throughout his life within the Sunni denomination of Islam.
Until 3 years ago, IH lived in his Punjabi speaking family home within a Muslim Community in West Yorkshire. His parents are described as 'devout' Muslims who believe that their adult son should adhere as fully as possible to the tenets of the Islamic Faith.
Inevitably, at times the family struggled to cope with IH's behaviours; in 2008 he had two in-patient admissions under section 2 and section 3 of the Mental Health Act 1983. Increasing levels of support were offered to the family while at home. TH (IH's father) personally shaved IH's pubic and axillary hair for all the years in which IH was living at home and for one year beyond.
IH's supported living housing commissioned by the local authority is not a culturally aligned home. IH is not able to care for himself and is assessed as needing 2:1 support, 24 hours per day. He is dependent on his carers for all aspects of his care.
There were two separate applications in the case.
- Application by IH (through the Official Solicitor) for a declaration that it is not in his best interests for him to fast during the daylight hours of Ramadan;
- Application by IH's father for a declaration that it is in the best interests of IH for his axillary and pubic hair to be trimmed in accordance with Islamic cultural and religious practice.
Dr Ali (lecturer in Arabic and Islamic Studies) confirmed:
- Five Pillars of Islam are regarded as obligatory for Muslims;
- Some actions/observances are:
- Fasting during Ramadan is an obligatory practice; trimming/shaving of pubic and axillary hair is a recommended practice;
- There are exceptions for those who lack "legal competence" – who are regarded as being in a perpetual "heightened state of spirituality" and therefore exempt from practising the major rituals;
- "No hurt no harm" is a cardinal principle of Islam.
The judge was wholly satisfied that it was not in IH's best interests for him to be expected to fast during Ramadan next month or indeed at all.
The judge concluded that it was not in IH's best interests for his pubic and axillary hair to be trimmed.
The Judge concluded that:
- The procedure would compromise IH's dignity and expose both IH and his carers to the risk of harm if he found the procedure stressful causing aggressive behaviour; and
- IH would not gain any 'religious benefit' as it is accepted that he does not have the capacity to understand the religious significance of removing his pubic/axillary hair – the benefit would be for others (his family).
Although the local authority recognised the religious significance of the hair-trimming procedure for a person with capacity it argued that there is no religious obligation for the care home to assist IH with the procedure as he lacks capacity.
- IH does not have any understanding of religious matters, nor of the consequence of hair removal or fasting;
- IH has no understanding of the concept of Islam, no capacity to positively feel proud of his religious heritage and is unable to actively associate with an identity or culture;
- "Relevant Information" for capacity to make decisions to fast for Ramadan:
- What fasting is; the lack of food and liquid, eating and drinking;
- The length of the fast;
- If for religion, for custom (family or otherwise), for health-associated reasons, or for other reasons;
- If for religious reasons, which religion and why;
- The effect of fasting on the body;
- What the consequences would be of making a choice to fast and the risks of choosing to not fast or of postponing the decision.
- "Relevant Information" for capacity to make decisions in relation to removal/trimming of hair for religious purposes:
- Which parts of the hair are being removed – pubic, axillary, perianal, trunk, beard, leg, torso, or head;
- Whether the reason for the hair trimming/removal is religious, for the maintenance of good hygiene, custom, or some other;
- If for a religious reason, which religion and why;
- What the consequences would be of making a choice to have hair trimmed/removed, and of not trimming/removing the hair.
This case summary was written by Legal Apprentice, Laura Pearce.
Please contact Hannah Taylor if you wish to discuss this case or any related topics further.
Bevan Brittan's Clinical Risk Team have prepared a comprehensive Knowledge Pack which offers guidance to commissioners, providers and care co-ordinators on the use of CCTV. The Pack is aimed at care environments with service users who lack capacity to consent to their care regime.
Please contact Hannah Taylor if you would like to receive the Knowledge Pack or wish to discuss the Use of CCTV in Care Packages any further.