Court makes best interests ruling on man’s adherence to Islamic practices

Legal experts from Irwin Mitchell consider the implications of a recent Court of Protection case

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Photo: tashatuvango/Fotolia

by Yogi Amin and Ashley Day

The family of an incapacitated Muslim man (‘IH’) made an application to the Court of Protection back in August 2016 for a determination as to whether it is in IH’s best interests to have his pubic and axillary hair trimmed in accordance with Islamic religious practice.

This application was widened by the court on 1 February 2017 to include a determination as to whether it is in IH’s best interests to follow religious observance by fasting during the month of Ramadan following a suggestion that this may have occurred previously. This issue was however agreed between the parties by consent that it was not in IH’s best interests to fast during Ramadan and the court approved an order to that effect.

IH is a 39 year old male who has a profound learning disability, functioning at the developmental level of a 1 to 3 year old. He also has atypical autism, has communication difficulties and displays challenging behaviours of varying duration and intensity.

IH resides in his own rented property and receives two to one care and support from an outside care agency. As part of the application before the court, a care plan was devised in which it was decided that members of IH’s care team would carry out the hair trimming procedure on IH’s behalf.

Expert evidence

Extensive evidence was put before the court in advance of the final hearing before Mr Justice Cobb and oral evidence was heard at the hearing in Court over three days.

The evidence of Dr Carpenter, Consultant Psychiatrist, was that due to IH’s learning disability he does not have the mental capacity in accordance with the Mental Capacity Act 2005 to make decisions in relation to having his pubic and axillary hair trimmed in accordance with Islamic practice as he cannot understand the points relevant to the decision. There was agreement amongst the parties that IH lacks capacity and will not regain capacity in the future.

The evidence on Islamic practice was provided by Dr Ali, lecturer in Arabic and Islamic Studies.

The judge noted:

  • “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. [para 26]
  • Significantly for present purposes, Islam stipulates different arrangements for those who lack ‘legal competence’.” [para 27]

Dr Ali explained to the court that whilst fasting during Ramadan is a mandatory obligation for legally competent adults, the removal of pubic and axillary hair is simply recommended. Dr Ali’s evidence was clear that the legally incompetent person such as IH, (along with the terminally ill, disabled and minors), is exempt from practicing the rituals of Islam as they are perpetually in a heightened state of spirituality. He went on to add that there is no obligation on an incapacitated person’s carers to carry out the hair removal or trimming on their behalf and that the rights of the incapacitated adult will not be violated if the procedure is not undertaken.

Local authority position

IH’s father and two members of IH’s social work team from the local council put forward arguments that it is in IH’s best interests to have his pubic and axillary hair trimmed in accordance with Islamic practice. IH’s care provider expressed that due to the nature of IH’s challenging behaviour and that IH is exempt from such procedure, it is not in IH’s best interests. This view was shared by the NHS Clinical Commissioning Group.

The Official Solicitor (acting as litigation friend for IH) gave careful consideration to the issues before the court and the need for IH to adhere to his religious and cultural background as much as possible. However, given IH’s lack of understanding of religious observance, the lack of evidence of benefit that IH would receive from adhering to such Islamic practices and the severity and frequency of his challenging behaviour, they reached the view that it would not be in IH’s best interests to have his pubic and axillary hair removed.

Judge’s conclusion

Mr Justice Cobb handed down the judgement in the High Court and accepted that if IH had capacity he would be highly likely to have his pubic and axillary hair removed however, he concluded that it is not in IH’s best interests to fast during the month of Ramadan or have his pubic and axillary hair trimmed in accordance with Islamic practice for the following reasons:

  • There is no religious duty or obligation on an incapacitated adult to trim or remove their pubic or axillary hair in accordance with Islamic custom nor is there any requirement for their carers to do this for them;
  • Incapacitated adults such as IH are already in a heighten state of spirituality;
  • IH would derive ‘no religious ‘benefit’’ as he does not understand the religious significance of removing/trimming his pubic and axillary hair;
  • The need to protect IH and his staff as IH may find the situation anxiety-inducing and stressful which may result in his aggressive behaviour developing at a rapid and dramatic speed; and
  • The procedure compromises IH’s dignity.

The judge held in conclusion that 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).”

The judgement of Mr Justice Cobb on this issue is significant as it is the first reported court judgment on this issue. The reasons set out in the judgment may have wider significance for other incapacitated adults who receive care and support of this nature from outside care agencies, however the judgment makes it clear that each case must be determined on its own merits.

Yogi Amin is a partner at Irwin Mitchell and Ashley Day is a trainee chartered legal executive at the firm.

 

14 Responses to Court makes best interests ruling on man’s adherence to Islamic practices

  1. Anita Singh June 16, 2017 at 3:46 pm #

    Really, the LA adult services has gone to such ridiculous and great lengths to support this young man’s father in his actions to waste precious public resources and money on unnecessary and expensive litigation to decide on whether pubic and armpit hair should be shaved or not?

    LAs are making huge cuts to social care budgets. There are many extremely vulnerable adults in desperate need who are being denied the most basic social care services. Yet somewhere a LA senior manager has seen fit to waste public resources and incur huge expense to agree to support this father in his action to instigate totally unnecessary legal proceedings.

    Further waste of the time that social care, NHS and care agency professionals have to give to service users, which is already spread too thinly. This litigation would take precious time away from those in desperate need of basic front line medical and social care support in order to deal with this matter.

    This issue could have been easily resolved with basic common sense and co-operative discussion at a grass roots level, rather than getting into some misguided over the top, unnecessary and expensive litigation. Totally ridiculous.

    STOP THIS OBSCENE WASTE OF PUBLIC MONEY which has amounted to nothing.

    • Mel June 20, 2017 at 8:59 am #

      Anita, I would like to think that they did initially work through a “common sense” approach and have discussions about it, but unfortunately religion and culture are very contentious issues and it isn’t surprising that the family didn’t want to back down about this issue. This is about their child who they will have made decisions about their whole lives and the issue would’ve initially arisen whilst still legally a child so they would’ve spent many years making that decision for him prior to becoming an adult and being subject to the adult social care system.

      I think the ruling doesn’t shock any of us because it is the bread and butter for any of us working with mental capacity considerations to weigh up the benefits versus any potential harms/risks. But to a family who see this as a part of an identity they have forged for their child and that’s a part of their own cultural identity, it’s a different matter. Letting go of what is “non-essential” about our identities would hopefully not be taken lightly by any of our advocates, whether formal or informal. Ultimately both parties, I believe, appear to have him at the centre of their reasonings, just from different angles with different experiences. Perhaps we need better mediation services in adult social care to resolve these kinds of disputes, but until we do then this is going to be where many contentious issues end up.

      • Jim Greer June 20, 2017 at 1:45 pm #

        Mel, I think you should read the judgement. It was decided on the basis of evidence put forward in the case that the service user had no concept of religion or belonging to one. He is not a ‘child’. He is a 39 year old man and there is no guarantee that had he had capacity, he would have continued to be committed to his parents’ faith when he grew up. Faith is or at least should be a matter for personal choice. If we make an assumption of faith in the absence of capacity for choice on the part of the service user, then we are making a judgement which is both religiously and socially conservative.
        In relation to the practice of shaving this man’s body- it is obvious from the judgement that this would have been distressing to him and potentially put him and his carers at risk. I cannot imagine why local authority social workers would even consider it acceptable to put this man through this.
        The heartening aspect to this case is the sensible and balanced approach of the Islamic scholar. Indeed this approach is reflected in easily accessible websites such as that of the Muslim Council of Britain which clearly set out exemptions for people with learning disabilities to practices such as fasting.

    • Kez June 22, 2017 at 11:04 am #

      Anita,

      I think from the tone of your posts you seem angry that the case went to court and money and time was spent on this case simply because the case was a Muslim one. This case is about learning lessons and sharing the learning. So I welcome the judgment made.

      Thank you.

      • Anita Singh June 27, 2017 at 3:45 pm #

        Kez, I am not angry, just concerned about the waste of public resources and you think that I have expressed opinions specifically because the family are of the Muslim faith and in effect suggest that I am being racist. Really, so are you suggesting that I should not dare to express an opinion, simply because the family is Muslim? In both of my posts, I have made my views very clear as to the waste of public money and would equally apply to a Christian, Jewish, Sikh, Hindu, Buddhist, Jain, Rastafarian or any other religion that a person is from. This is made clear from my second post which was posted prior to your comments but appears later in this thread of posts.

        As I have already stated twice now, there are numerous vulnerable adults who are suffering due to an inadequate provision of service, perhaps you should ask them what they think and try justifying the expense to them.

        • Kez July 3, 2017 at 11:46 am #

          Anita,

          You do sound angry. Chill out a little.

  2. Margaret June 18, 2017 at 12:54 pm #

    Congratulations to all involved for empathy and understanding. The team went an extra mile to maintain and guarantee this clients personal and religious observations, individual needs and requirements were thoroughly considered and not thrown to one side or ignored. It’s difficult situation that was not compromised in any way.

  3. Jim Greer June 19, 2017 at 10:48 am #

    I find this case extremely disturbing as a professional social worker and as an atheist. It appears from the information given in the article here that social workers were supporting the views of this man’s parents that he forcibly would have his hair removed to have the to conform to his parents religious traditions. This man has been assessed as having a intellectual developmental level of a ‘one to three year old’. I think it is highly questionable whether he has any religious belief at all. I can see an argument for helping him to dress and present himself in ways which are in accordance with that of his family. However, I cannot see a persuasive argument for applying any force to this individual to make him submit to physical restraint to have his body hair removed.
    It is the duty to social workers to help those who want to celebrate their religion to do so. It is not, in my opinion, correct for social workers to in any promote religion. Neither should social workers impose religious practices on adults who lack capacity nor on children who are not old enough to come to their own decisions about these things.
    In this case we see an Islamic scholar making a liberal sensible judgement in the face of two social workers going to court to enforce religious practices on a man incapable of understanding what they mean.
    I entered social work because I believed it was a progressive liberal profession which recognised the right of individuals to self- dermination. I do not consider that social workers should have supported the wishes of the parents in this situation.

    • Andrew June 20, 2017 at 2:57 pm #

      I would argue that for many religion is a guidance and value base. I would see it impossible and bias to not consider it’s influence. For many considering this as a helpful means of moving forward or in helping individuals see alternative perspectives, particularly where religious viewpoints might need to be challenages perspective and perception crucial when assessing and making decisions. Who said Social work was easy and I say this as a gay man with Christian values.

    • Jade June 23, 2017 at 2:30 pm #

      As an atheist too, I also feel that religious practices and acts have value to them and that the act itself is satisfying a need. This is because I do not believe there is a ‘god’ to please with the acts, but the acts themselves make people feel better. They make people feel better about following their rules as they are doing the ‘right’ thing. I therefore personally believe that if a person cannot understand why carrying out a specific task/obligation which is part of their religion, then there is no specific benefit to them.

      However, I also recognise that my belief about the lack of value for this person comes from my own personal values of the value of religion as a whole. I can easily understand that a person who is religious doesn’t necessarily see acts themselves as providing fulfilling meaning, but just as the means to the end (pleasing their lord/God etc) and therefore can see why they feel they should happen regardless. It is usually part of religious practice to also encourage other people to maintain their religious practice and faith, so I can see why the parents would continue to insist on these practices for their son.

      I hope this makes sense, but my point is if you are admitting you are an atheist you should be considering how your personal values that impacts on how you approach this case, which is of people of clearly different values.

      • Jim Greer June 26, 2017 at 1:35 pm #

        My point was that this person was not capable of having a religious viewpoint. For non-invasive issues such as diet there in nothing wrong with him being given a halal diet. However, the process which he was to be subjected to- shaving his body hair -was potentially distressing and/or harmful for him.
        My position as an atheist is not one of being against religion or condemning it in any way. It is rather that I don’t believe that people should be assumed to have a belief in the absence of any sign from them that they have embraced a faith. I was brought up as a Christian but I don’t think the religious beliefs of my parents convey any rights on that religion or its adherents to assume religious beliefs in the event of me lacking capacity at any time in my life.
        Social workers have to take a neutral approach on cultural practices. There are many cultural practices which we have to challenge because they are harmful to people or take away the rights which people should enjoy as being part of our society. If we are to be trusted a s a profession to uphold people’s rights and challenge forms of oppression be they gender based, cultural or religious- we cannot take a default position of upholding religious and cultural traditions, especially where there is clear evidence that they are causing distress to service users.

  4. Anita Singh June 21, 2017 at 12:28 am #

    Aside of religious practices, if I shaved my pubic hair and was to become physically incapacitated, would I want my mother or a personal carer to shave my pubes – absolutely NO I would not. At the very least I would feel it to be an invasion of my personal privacy and would be upset. When this man is not able to tell anyone what he wants, it is not for anyone to decide on his behalf. Indeed, the fact that social workers sought to support the man’s father, indicates that they supported the invasion of this man’s personal privacy in a most intimate area and by their failure to recognise his lack of capacity, rode roughshod over his rights. I agree with Jim it is disturbing.

    That said, I also consider that expensive litigation by the Local Authority was unjustified, as those resources could be spent on those who have been denied basic services or an increase in inadequate provision of services. The budgets available for social care are too precious to waste and the expense of litigation should only be considered in very exceptional circumstances when there is a real issue of a human rights abuse.

  5. Ann Edwards June 21, 2017 at 6:24 pm #

    Presumably the fact that the man’s key worker is of the Muslim faith influenced the local authority in this case. How sad that religion should take precedence over human rights. It is shocking that the local authority should provide funds for this legal action, when funds for essential services are being reduced or cut. Social work as well as health professionals should always strive to protect an individual’s right to personal privacy and respectful intimate care. It is common sense that this should rule out shaving body hair when such an unnecessary and intrusive action could provoke aggression or anxiety causing stress to the person being cared for and risk to all involved. All faiths including Islam are open to interpretation. I hope that the social work team and any others faced with similar demands by family members study the judgement, in particular Dr Ali’s balanced and informed evidence.

  6. Kez June 22, 2017 at 10:58 am #

    It is interesting as a Muslim person and a social worker myself that this ended up in court. The view of the father was important but it didn’t need to end up in court as this could have been managed through the best interest process and a sensible approach could have been taken where a person lacks capacity on this decision to be made on a the pubic and axillary hair trimmed.

    In cases such as this there is no religious requirement for one to do follow this through if the person does not have capacity. Similarly, if a Muslim person who lacks capacity in making choices around food type and decides to eat pork or ham and this is the only food he / she would keep him /her alive then this would be managed through the best interest process.

    Yes there would be disagreements with families, friends or other legitimate people involved in the person’s care, but at the end of the day this is about the person and nobody else. I always consider and apply anti-oppressive and discriminatory practice, human rights and MCA. The wishes of the person, their values and beliefs is more important to me than anything else.

    I have often come across these type of cases and to be honest I have taken a sensible approach. I will avoid cases going to the CoP but sometimes it is impossible for one to avoid this if everything else has been tried and there is a significant dispute from parties.

    It does not matter what religious background you are from as a social worker, you have to put your views and opinions to one side and put the person in the centre of any decision making without making any personal judgements about what you think. As a social worker it is not what I think it is about what the person needs. This is a skill itself.