Re IH (Observance of Muslim Practice)
In this significant case, Cobb J had to decide two questions in relation to a 39 year old Muslim man with profound learning disabilities, namely whether it was in his best interests (1) to fast during the daylight hours of Ramadan; and (2) for his axillary (i.e. underarm) and pubic hair to be trimmed, in accordance with Islamic cultural and religious practice insofar as it was safe and reasonable to do so.
IH spent the first 35 years of his life in a Punjabi speaking home within a Muslim community in West Yorkshire before moving to a supported living placement arranged by his local authority and funded by the CCG. His parents were of the Sunni denomination of Islam, and were 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. Cobb J accepted the expert evidence of the psychiatric expert, Dr. Carpenter, "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." IH had never been expected to fast during Ramadan. His father had personally shaved his pubic and axillary hair whilst he was living at home and for one year beyond (i.e. until 2014).
According to the evidence summarised by Cobb J, IH's impairments meant that he did not have any understanding of religious matters nor of the consequences of hair removal or fasting, nor was he capable of meaningful communication over abstract issues.
The local authority recognised the importance of facilitating the religious observances even of those who lack capacity. They provided, for instance, 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. As an aspect of this, they decided in 2015 (apparently in agreement with TH) that staff members would carry out the "hair removal" on IH every two weeks though this in fact did not happen.
IH, through the Official Solicitor, made the application for a declaration that it was not in his best interests to fast during Ramadan. His father, TH, applied for a declaration in relation to the trimming/removal of his hair. This was initially couched on the basis that this was a religious duty, although ultimately this ended up being refined into the version set out at the outset.
Although there was no dispute as to IH's lack of capacity, Cobb J outlined the information relevant to the two decisions in terms which are of more general use.
In order to have capacity to make the decision to fast for Ramadan, Cobb J held a person would be expected to understand (and presumably also retain, use and weigh):
- What fasting is; the lack of food and liquid, eating and drinking;
- The length of the fast;
- If for religion, for custom (family or otherwise), for health-associated reasons, or for other reasons;
- If for religion reasons, which religion and why;
- The effect of fasting on the body;
- What the consequences would be of making a choice to fast and the risks of choosing to not fast or of postponing the decision.
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, Cobb J held that a person would be expected to be able to understand:
- Which parts of the hair are being removed – pubic, axillary, perianal, trunk, beard, leg, torso, or head;
- Whether the reason for the hair trimming/removal is religious, for the maintenance of good hygiene, custom, or some other;
- If for a religious reason, which religion and why;
- What the consequences would be of making a choice to have hair trimmed/removed, and of not trimming/removing the hair.
Cobb J expressly directed himself by reference to the Supreme Court's guidance as to the meaning of best interests in Aintree, and heard from a lecturer in Arabic and Islamic Studies (Dr Mansur Ali, from Cardiff University) so as to be able to gain a true picture of the importance of the place of fasting and the trimming/removal of pubic/axillary hair for IH.
Cobb J outlined in some detail what he had been advised by Dr Ali:
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.
Best interests: fasting
It was uncontentious that it was not in IH's best interests to fast:
- 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.
Cobb J started with some important general observations concerning religion and disability:
- 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.
Into the balance, Cobb J put the following further factors:
- That if IH had capacity he probably would have observed this custom. However, this factor carries little weight in his overall reckoning given that he found that, in progressive Islamic religious teaching, as an incapacitous person IH was exempt from observing the Islam rituals because he was already in a heightened state of spirituality;
- That IH was not, and had never been able, to express a reliable view on the issue;
- That it was to IH's benefit that his family felt he was being enabled to follow Muslim custom to the fullest possible extent. However, Cobb J held that this was 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;"
- The potential risk to IH from the way in which removal would be carried out, which 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 was planned to take place following IH's bath in circumstances IH might find overcrowded, claustrophobic, and anxiety-inducing;
- IH's dignity. Even though Cobb J noted that IH was said not to have any sense of personal modesty, in that he was not concerned about exposing his genitals in front of staff, he considered that the procedure contemplated carries with it "compromises to the preservation of dignity."
- 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).
Cobb J was at pains to inform himself of the actual requirements of Islam, as opposed to the requirements that were (mis)understood by IH's social workers and, it appears, to some extent by TH himself. In so doing, and in calling upon the expertise of a cultural expert, he was in unusual, but not unprecedented territory. Similar expertise seems to have been called upon (albeit referred to in passing) in A Local Authority v ED & others  EWCOP 3069, concerning an apparent "duty" to remove the pubic hair of a Muslim woman, with an exception for the incapacitous. The court also called upon a cultural expert in Re BB, in which the court heard from a cultural expert on the implications of the marriage of a Banglad\eshi woman and the ways in which it might be brought to an end, albeit in that case finding that the expert provided no actual assistance.
As in so many other of the new wave of Aintree-compliant cases now being determined, this case serves as a useful test to see whether applying the CRPD would produce a different substantive answer (and, if is contended that it would, on what basis). For our part, it seems the very model of a decision complying with Article 12(4) CRPD, constructed from the person outwards and respecting not just the best interpretation of their will and preferences but also their rights (noting, in this, that to inflict hair removal on an individual with disabilities in potentially stressful circumstances in the name of a – projected – religious belief could well constitute both violence and abuse for purposes of Article 16 CRPD). It therefore serves, we suggest, as evidence that notwithstanding the toxic brand of 'best interests' for CRPD purposes, the model of decision-making under the MCA 2005 is capable of producing outcomes that are CRPD-compliant. The fact, in practice, it can all too often fail to do so is a significant factor underpinning the proposed amendments to s.4 MCA suggested by the Law Commission.
We do note one passing comment, though. At paragraph 38, Cobb J noted that it was "progressive" Islamic belief that as an incapacitous person IH was exempt from observing the Islam rituals because he was already in a heightened state of spirituality. This raises the question of whether (a) there is another school of Islamic belief and, if so, what it provides; and (b) more generally, whether – and how – the courts will be required to adjudicate between different schools of belief, whether within Islam or within other faith structures. Such would be to enter into very deep waters indeed.
 In fact, religion is specifically mentioned in preamble (p) to the CRPD as regards the position of persons with disabilities who are also subject to discrimination on the basis of religion. Further, the CRPD is intended to ensure with persons with disabilities are entitled to enjoy "all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability" (Article 4), and the equivalent to Article 9 ECHR is to be found in Article 18 of both the UN Declaration on Human Rights and the International Covenant on Civil and Political Rights.
 We note in this regard the specific references to the Law Commission's work in the response by the Office of the Disability Issues to the Committee on the Rights of Persons with Disabilities to the list of issues identified by the Committee ahead of its inspection of the UK later this year (see para 49). Adrian Ward will consider this – otherwise distinctly underwhelming – response further from a Scottish perspective in the next issue.