IH (Observance of Muslim Practice)

The applications before the Court of Protection concern IH. He 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 funded by the local Clinical Commissioning Group. He has been raised by his family throughout his life within the Sunni denomination of Islam.

Issues have arisen in relation to IH’s general observance of religious custom and practice while in his supported care home. The applications before the Court specifically relate to two such aspects, as follows:

In determining these applications, I heard brief oral evidence from several witnesses: from TH, Dr. Peter Carpenter, Honorary Consultant Psychiatrist in Learning Disabilities, IH’s allocated social worker, the social worker’s team manager and the assistant manager with responsibility for the supported housing where IH lives, and Dr. Mansur Ali, lecturer in Arabic and Islamic Studies at Cardiff University. I read a number of other unchallenged statements and reports.

The application at [2](i) was not in fact contentious, and having reviewed the evidence and heard submissions I 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. Given the imminence of Ramadan following the hearing (it starts on May 27), I made an order by consent in the terms sought at the conclusion of the hearing. I briefly address the issues engaged at [30]–[32] below.

I have concluded that it is not in IH’s best interests for his pubic and axillary hair to be trimmed. 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.

I have set out my reasoning fully having been advised by the Local Authority that the principles may be of assistance to other cases in their area and more generally to adult care services which have a responsibility for Muslim adults who lack capacity. It must be recorded of course that each best interests decision must turn on its own facts.

IH is 39 years old and one of four children of TH and his wife (‘DH’). As earlier indicated, he has a profound learning disability, and functions intellectually at the developmental level of a 1-3 year old. He also has atypical autism (i.e. his level of mental retardation makes it difficult to elucidate a full house of autistic symptoms). He has the appearance of microcephaly, he has a neurodevelopmental disorder, hemiparesis, a weakness on the right side of his body, myopia, a convergent squint, an intermittent loss of balance and a mood disorder. He is doubly incontinent. He has familiar routines, but is reported not to stick to or depend on routines; he nonetheless likes predictability. He has a short attention span. He is greatly loved by his family, and is popular with his carers.

He has difficulties in social communication, generally communicating through facial and body gestures, and signs; he uses single Punjabi and English words. He shows variable and inconsistent understanding of commands and words; he can indicate ‘no’ by shaking his head, but when he does so he may not in fact mean ‘no’. Several of the professionals working with IH have commented that:

“his communication difficulties preclude us from really finding out his preferences in relation to his care and where he lives”.

Dr. Carpenter adds:

“Due to his level of learning disability IH needs total care and support. He cannot effectively regulate his mood, protect himself from any common risks or carry out any of the activities of daily living necessary for life”.

Due to the profound level of his intellectual impairment he does not have any understanding of religious matters nor of the consequences of hair removal or fasting. He is not capable of meaningful communication over abstract issues.

IH spent the first 35 years of his life in a Punjabi speaking home within a Muslim community in West Yorkshire. His parents are of the Sunni denomination of Islam, and are described in the court papers as ‘devout’. When IH was living at home, he participated in, to the extent he was able, and was certainly exposed to the routine religious practices and observances of the family; the expert evidence of Dr. Carpenter (which I accept) is that he would have had no real appreciation of the religious significance of these rituals even if he enjoyed the regularity with which they were performed, and appreciated an increasing familiarity with them. The family engage in daily prayers, they fast during Ramadan, they celebrate Eid, all activities associated with the Five Pillars of Islam. IH has never been expected to fast during Ramadan; some while ago, TH stopped taking IH to the mosque for prayers or other events as his behaviour there was occasionally disruptive to others.

Until August 2013, IH resided in the family home, cared for primarily by his father. Inevitably, TH and the family at times 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 (including the provision of daily day-care) to relieve some of their burden. TH personally shaved IH’s pubic and axillary hair for all the years in which IH was living at home and for one year beyond (i.e. until 2014).

In mid-August 2013, IH moved to reside in supported housing provided by the Local Authority; this is not a culturally-aligned home, and his carers are not Muslim (though, in fact, his key social worker is). In 2014 proceedings were issued in the Court of Protection to resolve a dispute between the family and the authorities about the optimal care and residence arrangements for IH. Within those proceedings, there was no controversy about IH’s lack of capacity to conduct proceedings, or make the key decisions about his residence and/or contact. The proceedings were ultimately resolved in the following year (June 2015) by orders made in the Court of Protection by consent providing for his residence in the home with a care package provided by the local authority and care provider (the placement and care package being funded by the CCG), for the associated authorisation for the deprivation of his liberty, and contact with his family.

IH is not able to care for himself, and is assessed to require 2:1 support, 24 hours per day (one sleeping, one awake member of staff at night). He is dependent on his carers for all aspects of his care. His facial hair/beard is shaved with the use of an electric razor, which he tolerates. He is an engaging man, and generally enjoys the company of, and is enjoyed by, his family who are regular visitors; he visits his family home three times per week. IH regularly becomes agitated. Episodes of agitation can be provoked (sometimes “dramatically” and “without warning” per Mr. Scott, a learning disability nurse and assistant manager of the supported living accommodation where IH lives) by particular situations, and they can be unprovoked; he sometimes wakes in an agitated mood. He has a generalised diminished awareness of everyday risks and dangers. He is dependent on support from his carers for all aspects of his care including his personal care, meal preparation, and accessing the community. Mr. Scott gave evidence about the regularity of these occasions; I was left with the strong impression that they are regular, (sometimes several times per day, often associated with staff change-overs or family visits, sometimes very few in a day), of varying degrees of severity and intensity. There have been days when IH’s “elevated behaviours” have lasted 12-13 hours. When aroused, IH has a tendency to kick, bite, grab his carers, punch and/or spit. Mr. Scott described how on one occasion he suffered broken skin to his leg (even through trousers) when IH kicked him.

TH is anxious that his adult son should adhere as fully as possible to the tenets of the Islamic faith, and follow to the extent that this is possible religious observance and custom. TH and DH would expect IH to celebrate Eid with his family, and generally to eat Halal food, but they recognise that IH should not be expected to fast during Ramadan, given that IH would not understand the withholding of food and liquid during daylight hours. TH initially deposed to the fact that “the removal of underarm and pubic hair is a very essential part of” (emphasis added) being brought up in the Muslim faith; he added that it was “compulsory”. In the final analysis, TH’s case has been modified in line with Dr. Ali’s evidence below.

TH expressed the view that IH would know “that Muslims do this” (i.e. hair trimming); I do not accept this, as I am satisfied on the evidence (see [9] above and [22-23] below) that IH does not have the capacity to appreciate this concept. He nonetheless considers that it is IH’s “right” and that IH would have performed this on himself had he had capacity to do so. I found TH (and his daughter who also attended court and also briefly addressed me), to be entirely focused on the best interests of IH; TH is well-motivated and understandably concerned, as a devout Muslim, to ensure that IH is enabled to live his life as closely to the Five Pillars of Islam as achievable and practicable.

The local authority recognises the importance of facilitating the religious observances even of those who lack capacity. In 2015, it was agreed that staff members would carry out the ‘hair removal’ on IH every two weeks though this in fact did not happen. The key social worker, herself a Muslim, told me:

“Islam is a significant part of IH’s identity. He has been brought 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 … 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.” (underlining added)

I accept the Local Authority’s general position insofar as it contains important recognition of support for religious practices for IH. However, I consider that the social worker has significantly misunderstood (reflected by the words underlined) IH’s capacity to understand and reflect the concepts associated with religion. IH has no understanding of the concept of Islam, and I find that he has no capacity positively to feel ‘proud’ of his religious heritage; nor is he able actively to ‘associate with’ an identity or culture, although he is undoubtedly associated by his family with that identity or culture.

Mr. Scott, IH’s principal carer, whose evidence is relied on by the Local Authority, advised me that he does not in fact believe it to be in IH’s best interests for his pubic and axillary hair to be trimmed, but Mr. Jarrod (Acting Team Manager in the Community Team for Learning Disabilities) “on a fine balance” considers that it is. The Local Authority support the granting of a declaration that IH need not fast. This is how Ms Khalique QC presents the case on behalf of the Local Authority.

The CCG supports the declaration proposed by IH (at [2](i)) but opposes that proposed by TH (at [2](ii)); their submissions largely coincide with the views expressed on behalf of IH.

The Official Solicitor, on behalf of IH, advances the case for the declaration at [2](i) but opposes the declaration sought by TH ([2](ii)). While recognising the religious significance of the hair-trimming procedure for a person with capacity, it is argued that 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. There is on the other hand a risk to IH in attempting the trimming of the hair that he or others will be harmed in the process.

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)):

Dr. Carpenter is clear that IH is not able to understand any of the six points listed in [20] 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:

Dr. Carpenter is clear that IH is not able to understand any of the four points listed in [22] 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)).

Section 4 guides my determination of IH’s best interests. It is a well-known statutory provision which does not require full rehearsal here. I am enjoined to have regard to the wide range of “relevant circumstances” to be considered (section 4(2)), though in relation to those identified in (i)-(iii) below, only “so far as reasonably practical” (section 4(6)):

I have approached my task by reference, inter alia, to the guidance offered by the Supreme Court in Aintree University Hospitals NHS Trust v James [2013] UKSC 67, [2014] 1 AC 591:

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:

As indicated above ([29](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 ([13]) 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.

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 [2014] 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 dieteven 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 [14]) 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 [2013] EWCOP 3069, in which he referred (at [12]) 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 [29](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. I was advised that TH does so, as do IH’s brothers (aged 33 and 35), and they have done so throughout their adult lives. It would have been entirely consistent with the religious and cultural norm within his home and community. IH would have been influenced, I am sure, by the fact that it would also have been a minor sin not to do so. However, this factor carries little weight in my overall reckoning given that in progressive Islamic religious teaching, as an incapacitous person IH is exempt from observing the Islam rituals because he is already on a heightened state of spirituality.

I am satisfied on the evidence that IH is not able to express a reliable view on the issue. He has never been able to express a view on a subject such as religious obedience; while he may have copied or sometimes even prompted his father’s familiar praying poses, and may have recognised the familiar gesture of hands being raised in prayer, I am satisfied on the evidence of Dr. Carpenter that he will have been unable to attach any religious significance to these experiences. This is not a case, unlike Briggs v Briggs [2016] EWCOP 53 for instance, in which I have any recourse to IH’s previous wishes and feelings. His disability has been lifelong.

I have considered carefully the views of TH and the family, and attach to those views significant weight (having regard to section 4(7)(b) and the Code of Practice at para.5.54). I note that TH heads a family where Islamic religious observances are maintained; the practice of pubic and axillary hair shaving was performed by TH for many years at home without apparent problem. I also note that TH does not take an absolute view of religious observance for IH, recognising that in some important respects (even those enshrined in the Five Pillars of Islam) it is impractical for IH to follow the faith where the disadvantages of observance of religious ritual outweigh the advantages. Thus, TH recognises that IH will not attend at Mosque, or say daily prayers (‘salah’), or fast during the daylight hours of Ramadan (‘sawm’). That said, I recognise that it is to IH’s benefit that his family feel that he is being enabled to follow Muslim custom to the fullest possible extent (see in this regard MCA 2005: Code of Practice paras. 5.47 and 5.48).

This is not a case in which I believe that IH will be viewed any less favourably or affectionately by his family or wider community if the hair trimming is not carried out; he is, within the family and community, much loved. He has not had the hair trimming carried out for three years to date, with no discernible change in family attitude to him. He is, as I have emphasised already, in a superior not an inferior state of spirituality to the rest of his family.

I have taken account of the views of IH’s carers. Mr. Scott knows IH as well as any of his carers. He is the carer who would be designated to perform the task. He initially assessed the risk attached to the procedure in September 2016; his risk assessment identifies:

“[IH] becoming agitated during the hair removal process causing harm/injury to self or others. Staff would be vulnerable from an outburst of known aggression from [IH] should it happen. [IH] could be injured by the necessary equipment used to carry out the task.”

At that time, Mr. Scott considered that the risk should be taken. However, he expressed the view in his oral evidence that it would not be in IH’s best interests to have the procedure undertaken. He spoke with genuine concern, and from experience, about the behaviours of IH when aroused which I have summarised at [13] above.

The care plan has been considered during the hearing. I do not propose to rehearse it in detail here. When his father undertook the procedure, he used a safety razor and shaved the skin; it is now proposed that an electric shaver be used for trimming the hair. It is felt that the vibrations would be unlikely to cause sexual arousal (per Mr Yates – clinical nurse specialist in psychosexual medicine), or that trimming (as opposed to shaving) would cause skin irritation, minor cuts or abrasions, or infection (Dr Pollock, consultant dermatologist). It is said that the trimming would only be carried out if IH was in co-operative mood; there is no suggestion that any restraint would be imposed in order to carry out the procedure. Intimate personal hygiene needs of incapacitated adults are routinely met by their carers, and these actions are provided for in section 5MCA 2005 and para.6.5 of the MCA 2005: Code of Practice. In most respects the care plan seemed to me to reflect a person-centred approach. In one respect, I am concerned; namely the proposal that the procedure would require the possible intervention of up to three people, two of whom would be positioned with IH in the relatively small bathroom, where it is planned to take place following IH’s bath.

This highlights the risk to IH and others through the process of trimming the pubic and axillary hair. It is difficult to predict how IH will respond to the trimming procedure; he does not enjoy lifting his arms, and is resistant to deodorant spray. The social worker advised me that “IH will not always comply with personal care tasks due to his autistic behaviours”. He does not like to be in crowded situations. His propensity to aggression – provoked and unprovoked – is already described. While the hair trimming procedure was performed apparently successfully in the past, this was now three or more years ago, and was then undertaken by his father, not a carer. I am concerned that IH would find the bathroom overcrowded, claustrophobic, and anxiety-inducing. If he finds this stressful, he may well become aggressive; his aggression may develop suddenly and dramatically. This is Mr. Scott’s particular concern, and the principal reason for his view that it would not be in IH’s best interests to perform it.

I have, in my review of the circumstances, paid regard to IH’s dignity, conscious that “carers must be sensitive that the client’s dignity is not violated”. Even though IH is said not to have any sense of personal modesty, in that he is not concerned about exposing his genitals in front of staff, the procedure contemplated carries with it compromises to the preservation of dignity.

Mr. Jarrod’s endorsement of the application on behalf of the Local Authority was, when analysed, influenced by erroneous beliefs about the requirements of the process; that (a) removal of pubic hair was a “cultural need” for a capacitous Muslim (it is not), and (b) that it would “single him out as a person with a learning disability” (whereas such a person enjoys a heightened level of spirituality). He had presented a detailed written balance sheet to the court which he carefully and fairly reviewed and revised from the witness box ultimately concluding that the issue of whether this procedure should be undertaken or not was “finely balanced”.

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 [29](x) above).

For those reasons, and having reviewed the circumstances extensively above, I have reached the conclusion that:

That is my judgment.