Guidance on religious observance from Court of Protection

02 October 2018

Genevieve Screeche-Powell considers the guidance given by Mr. Justice Cobb on the difficult and sensitive question of the observance of Islamic religious practice for an adult lacking capacity in the case of Re IH (Observance of Muslim Practice) [2017] EWCOP 9.

The case concerned IH, a 39-year-old man with a profound learning disability, functioning intellectually at the development level of a 1-3 year old and with atypical autism. IH experienced episodes of agitation, sometimes provoked by particular situations.

For the first 35 years of his life he lived at home with his family, who were described as devout Muslims. By the time of the COP proceedings, he was in full time residential care.

The COP was dealing with: (1) An application by IH (by the Official Solicitor) for a declaration that it was not in IH’s best interests to fast during the daylight hours of Ramadan – this was uncontentious as IH had never done so and none of the parties were suggesting he should; and (2) – the issue that remained live -the father’s application that it was in IH’s best interests to have his axillary and pubic hair trimmed in accordance with Islamic cultural and religious practice. Father initially described this practice as a religious obligation.

Within the context of s3(1) MCA 2005, Cobb J identified what a person would be expected to understand to have capacity to make a decision to fast for Ramadan, and have capacity to make a decision in relation to trimming or removal of pubic or axillary hair for religious or cultural reasons. Section 4 MCA was the point of reference for determination of IH’s best interests, with Cobb J acknowledging that the best interests test contains a strong element of ‘substituted judgment’.

The court accepted the expert medical evidence that due to the profound level of IH’s intellectual impairment, he had no understanding of religious matters.

The court also accepted the evidence from a lecturer in Arabic and Islamic Studies that Islam stipulates different arrangements for those who lack competence. The opinion of medical practitioners as to competence would likely be considered authoritative in the Shari’ a. The legally incompetent person is perpetually in a heightened state of spirituality and hence exempt from practising the major rituals of Islam.

Cobb J concluded it was not in IH’s best interests to fast during Ramadan. It was also not in his best interests for his pubic and axillary hair to be trimmed, the court having been advised, and having accepted, that this is not required of him in accordance with the tenets of the Islamic faith. There is no benefit to IH in undergoing the procedure, which carries avoidable risks of harm to IH and/or his carers, were he to become stressed by the procedure.

As Cobb J pointed out, each best interests decision must turn on its own facts. However, the fully reasoned judgement is recommended reading for practitioners in this field, especially those involved in the case of adult Muslims who lack capacity.  It contains an extremely helpful analysis of capacity and bests interests within the Mental Capacity Act 2005. It is also illuminating as to the court’s approach as to informing itself of the requirements of Islam, as opposed to relying on what it was told by the parties before the court.

An interesting aspect of the judgement is the opinion emerging from the expert on Arabic and Islamic Studies is described as “progressive Islamic religious teaching.” If there are other schools of Islamic belief, will they provide something different, and will the courts be required to adjudicate between them? In the finest traditions of the legal world, that is a question for another day.