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Published On: July 10, 2017 | Blog | 0 comments

Observance of religious custom – interesting case before the Court of Protection

In the matter of IH (Observance of Muslim Practice) the Court of Protection considered two important issues stemming from the observance of an individual’s religious custom or practice.

P, in this case, was a 39-year-old man with profound learning difficulties.  He functioned at the level of a 1-3-year-old and suffered from atypical autism and various mood disorders.  P was moved into assisted living accommodation provided and paid for by his Local Authority.  Before moving into that facility, P had lived with his parents and siblings in the family home.  The family practised the Muslim faith devoutly.

Following a dispute relating to P’s care (between P’s family and the Local Authority) two-main questions were considered before the Court:

  1.  Whether it was in P’s best interests to fast during the daylight hours of Ramadan;
  2. Whether it was in P’s best interests for his axillary and pubic hair to be trimmed in accordance with Islamic cultural and religious practice.

There was no dispute about the fact that P lacked the capacity to make these decisions.  The main issue was whether the practises where in P’s best interests.

With regards to the proposed fast, P was unable to explain the purpose of a fast or its effect on his body.  P was unable to consider the consequences of fasting or the risks of choosing not to fast.  It was accepted that P would never regain the capacity to make these decisions.  In addition, P was unable to understand the reasons for removal of his axillary and pubic hair or whether that removal was for a religious or other reason.

Having considered expert evidence submitted to the Court, it was highlighted that “not all actions or observances within Islam, are obligatory…some are recommended, others optional…some reprehensible…others prohibited”.  There were also different arrangements permissible within the faith for those who lack ‘legal competence’ or capacity.  There was a specific exemption from fasting for the incapacitated.  The removal of hair was found to be ‘recommended practice’ but certainly not obligatory.

It was held that the withholding of food and water would cause P “stress or distress; this may cause him to become irritable and/or aggressive…increasing the risk to staff and himself”.   It was held that the trimming of P’s pubic and axillary hair would serve no spiritual or religious purpose to P and the Judge declared that she wished to spare P from an act that might, in fact, cause additional stress, whilst wanting to protect P and the staff from the risk of potential harm during the shaving process.  It was concluded that “P never had the capacity to understand the tenants of Islam; the benefits of adherence to such rituals do not obtain for him, but for others”.

This case offers interesting guidance to those working within adult services, which have responsibility for caring for individuals of the Muslim faith.  The Court did specifically record that each best interests decision must turn on its specific facts and therefore serves to demonstrate the Court’s possible approach to these matters.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Alexandra Knipe

Joint Head of Court of Protection

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