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.
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.
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.