An interesting Court of Protection case which might prove useful for other professionals.
IH (Observance of Muslim Practice) 2017
Cobb J was presented with an application by the Official Solicitor on behalf of IH, a man of Muslim background who lacked capacity, for a declaration that IH should not have to fast during the period of Ramadan as would be culturally usual for Muslims who had capacity.
At the same time, IH’s family sought a direction that IH’s body hair should be trimmed.
- There is no dispute that IH lacks capacity to make the decisions which are the focus of these applications; the diagnostic and functional criteria contained in, respectively, sections 2 and section 3 MCA 2005 are clearly established on the evidence. Specifically, to have capacity to make the decision to fast for Ramadan, a person would be expected to understand (section 3(1)(a)):
i) What fasting is; the lack of food and liquid, eating and drinking;
ii) The length of the fast;
iii) If for religion, for custom (family or otherwise), for health-associated reasons, or for other reasons;
iv) If for religion reasons, which religion and why;
v) The effect of fasting on the body;
vi) What the consequences would be of making a choice to fast and the risks of choosing to not fast or of postponing the decision.
- Dr. Carpenter is clear that IH is not able to understand any of the six points listed in  above. It is further agreed between the parties, having received Dr. Carpenter’s advice, that, given the nature of his disability, IH will not ever acquire capacity to make such decisions (section 4(3)).
- To have the capacity to make a decision in relation to the trimming or removal of pubic or axillary hair for religious or cultural reasons, a person would be expected to be able to understand:
i) Which parts of the hair are being removed – pubic, axillary, perianal, trunk, beard, leg, torso, or head;
ii) Whether the reason for the hair trimming/removal is religious, for the maintenance of good hygiene, custom, or some other;
iii) If for a religious reason, which religion and why;
iv) What the consequences would be of making a choice to have hair trimmed/removed, and of not trimming/removing the hair.
- Dr. Carpenter is clear that IH is not able to understand any of the four points listed in  above. He opined that while IH may give the superficial appearance of engaging in prayer, by responding to the familiar practice of the adults in the family turning to prayer (he holds his hands up, or places them behind his ears), he has no understanding of the purpose or higher meaning of the act of prayer. It is further agreed between the parties, having received Dr. Carpenter’s advice, that, given the nature of his disability, IH will not ever acquire capacity to make such decisions (section 4(3)).
Cobb J outlined the religious principles involved in these issues, and in particular that the Islamic faith already has provision for those who lack the ability to make their own decisions and who are therefore exempt from obligations that might be placed upon others.
Islamic religious observance for those without capacity.
- The Five Pillars of Islam (‘shahada‘ [faith], ‘salat‘ [prayer], ‘zakat‘ [charity], ‘sawm‘ [fasting] and ‘hajj‘ [pilgrimage]) are the foundation and framework of Muslim life, and are regarded as obligatory for Muslims. Not all actions or observances within Islam, however, are obligatory; some are recommended, others optional, some actions are reprehensible, and others prohibited. In Islam, a Muslim will commit a sin if he/she violates something which is obligatory or prohibited, will be rewarded for carrying out something which is recommended; a minor sin is committed for not doing something which is recommended, and for doing something which is reprehensible.
- Significantly for present purposes, Islam stipulates different arrangements for those who lack ‘legal competence’. ‘Legal competence’ in Islamic terms is defined by Dr. Ali as “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.” It is normal (per Dr. Ali) to defer to medical practitioners or experts on the issue of legal (mental) competence; their opinion would be likely to be deemed valid and authoritative in the Shari’a. The evidence filed in these proceedings, most notably from Dr. Carpenter, would be sufficient, I was advised, to form the basis in Islamic law to declare IH to be “legally incompetent”; all parties agree that IH is not legally competent under Islamic law.
- Dr. Ali advises that the legally incompetent person (along with the terminally ill, the disabled and minors) is perpetually in a heightened state of spirituality, hence he or she is exempt from practising the major rituals of Islam including adherence to the Five Pillars.
- On the specific issues engaged in this application, Dr. Ali advises as follows:
Fasting in Ramadan
i) Fasting during the daylight hours of Ramadan is one of the Qur’anically mandated obligations for all Muslims who are legally competent, and who are not exempt. Certain groups are exempt from fasting; they include the incapacitous, minors, the ill, pregnant women, those who are travelling. Those who are exempt are not morally culpable for not keeping the daylight fast.
Trimming or shaving of pubic and axillary hair
ii) Cleaning pubic or axillary hair is a religiously sanctioned practice deemed in Islam to be a normal human ‘right’ (‘fitrah‘);
iii) The rationale is founded in a quest for ritual purity and cleanliness; (the aphorism ‘cleanliness is next to godliness’ is of course familiar to many religions);
iv) The removal of pubic and axillary hair for the legally competent Muslim is ‘mustahab‘ or ‘recommended practice’; while it is not obligatory (‘wajib‘) it would be viewed as a ‘minor sin’ if unattended (see  above);
v) As IH does not have ‘legal competence’ it is not even recommended practice for him (see  above); there is no obligation on his carers to carry out the removal of IH’s pubic or axillary hair, and his religious rights are not being violated by not attending to this;
vi) It is highly recommended and praiseworthy for carers (of whatever religion) to shave or shorten a patient’s pubic or axillary hair, in the same way as it is for them to assist the incapacitous in other routine care tasks;
vii) There are differences of opinion between Islamic commentators as to the preferred manner of hair removal; any method would be deemed acceptable;
viii) The time limit within which the hair needs to be cleaned or trimmed or removed is also a matter of assorted opinion, though the majority of commentators favour a 40-day limit;
ix) While it would be not permissible for a competent Muslim to expose their genitals, it would not be contrary to the Shari’a for a Muslim without capacity who requires assistance with his care, for his carers to clean his genitals or shave them; that said, “carers must be sensitive that the client’s dignity is not violated”;
x) ‘No hurt no harm’ is a cardinal principle of Islamic bioethics; avoidance of harm has priority over the pursuit of a benefit of equal or lesser worth. Therefore it would be wrong to create a situation in which observance of Islamic custom would, or would be likely to, cause harm to the person (i.e. IH) or his carers; if there is a risk of harm, then this principle would absolve even the capacitated person from performing an obligatory requirement.
Is it in IH’s best interests to be relieved of his obligation to fast during Ramadan?
- As indicated above ((i)) there is no Islamic obligation on IH to fast given his lack of capacity. IH has never been required to fast by his family, and has not fasted while in their care. He has not, thus far, fasted while in the care of the Local Authority.
- If this had been a case in which IH had some appreciation of the religious significance of fasting in Ramadan (as a means to attaining taqwa, i.e. the essence of piety, protecting one’s self from evil) there may be said to be some benefit in him doing so. But he has no such appreciation.
- IH, I am satisfied, would not in fact understand why food and water was being withheld for the daylight hours in the month of Ramadan; the absence of food/water would be likely to cause him stress, or distress; this may cause him to become irritable and/or aggressive in the ways described above () increasing the risks to staff and himself. There is some minor anxiety that fasting and/or mild dehydration would increase the side effects of any one of his multiple medications. It is plainly not in his interests that he should fast, and the declaration will be granted.
Is it in IH’s best interests for his pubic and axillary hair to be trimmed?
- Health or social care bodies who make the arrangements for the care for adults who lack capacity owe 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 the religion of P, and to facilitate P’s access to, or observance of religious custom and ritual. All forms of liturgy should, where practicable, be accessible to persons with disabilities. This view is consistent with Article 9 of the European Convention on Human Rights, and the right enjoyed by those who lack capacity as for those who have capacity, to freedom of religion and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. While no specific protection in this regard appears to be offered by the UNHR Convention on the Rights of Persons with Disability, the rights enshrined in the ECHR (above) “are for everyone, including the most disabled members of our community” (Baroness Hale in P (by his Litigation Friend, OS) v Cheshire West & Others  UKSC 19).
- The duty outlined above is consistent with the expectation that in best interests decision-making for someone who lacks capacity, the court will take account, so far as is reasonably ascertainable “the beliefs and values” of that person which would be likely to influence his decision if he had capacity (section 4(6)(b)); these must include, where relevant, religious beliefs and values. This is illustrated in the instant case by the fact that the Local Authority provides IH with a Halal diet even though IH himself would not know that the food he ate was Halal, or the significance of the source and/or preparation of the food. The Local Authority recognise the need to respect IH’s religion.
- Of the “relevant circumstances” which require consideration in deciding on this issue, TH has placed the religious significance of the proposed procedure at the centre of the decision-making, and I turn to this first.
- The frame of reference for consideration of the issue has altered since the start of the litigation. At a best interests meeting on 9 September 2016, TH advanced the proposition that there was a religious “duty” to remove or shave IH’s pubic and axillary hair. In the same manner, his early written evidence (see ) referred to the “very essential” and “compulsory” nature of the activity, a view pronounced apparently on the authority of an Imam. This indeed is how Roderic Wood J characterised the issue, in passing, in the case of A Local Authority v ED & others  EWCOP 3069, in which he referred (at ) to a “duty” to remove the pubic hair of a Muslim woman (albeit recognising the exemption for the incapacitous). Dr. Ali’s evidence, on which he was not challenged, was to different effect.
- In short, as is clear from (v) above, there is simply no religious duty, or obligation on a person who lacks capacity (‘legal competence’ in Islam) to trim or shave his or her pubic and axillary hair, or on his carer to do so for them. IH does not need to acquire this state of ritual cleanliness in order to derive spiritual benefit as he already occupies an elevated status by virtue of his incapacity. Moreover, I am satisfied that IH himself derives no religious ‘benefit’ by having the procedure undertaken, as he would not understand its religious significance. It is of no consequence to me, in the consideration of these facts, that the carers may be blessed in the eyes of Islam in undertaking a ‘praiseworthy’ activity by trimming the hair; their interests are not my concern.
- I agree with TH, and with Mr. Jarrod, when they separately expressed the view that if IH had capacity he probably would have observed this custom.
And in conclusion
- I have faithfully endeavoured to consider these issues from IH’s point of view, while ultimately applying a best interests evaluation. IH has a life-long developmental condition and has never had the capacity to understand the tenets of Islam; the benefits of adherence to such rituals do not obtain for him, but for others. The fact is that by reason of his disability IH is absolved of the expectation of performing this recommended procedure, and there is no other clear benefit to him. The trimming of the pubic and axillary hair would serve no other purpose. I am anxious that IH should be spared additional stresses in his life, and wish to protect him and the staff from the risk of harm – an approach which itself has the endorsement of Islamic teaching (see (x) above).
- For those reasons, and having reviewed the circumstances extensively above, I have reached the conclusion that:
i) The parties are right in agreeing, and I confirm, that IH should be relieved of the obligation to fast during Ramadan;
ii) It is not in IH’s best interests that his pubic and/or axillary hair be trimmed in accordance with Islamic custom for capacitous followers of Islam.