Religious practices and brain injured persons: No easy answer

 

holly-mieville-hawkins-enable-law Holly Mieville-Hawkins, a senior associate in our Mental Capacity team, and Imam Qazi, a partner in Foot Anstey’s real estate  team who is an Islamic Finance specialist , have worked together to produce this analysis of a recent interest case from the Court of Protection:

On 12 June 2017 the matter of Re: IH (Observance of Muslim Practice) [2017] EWCOP was decided at the Court of Protection in Leeds. The case was highly interesting, but I expect far from unusual, on its facts. It related to a 39 year old man (IH) from a Punjabi family, who had been born in Pakistan but had been raised in Yorkshire for all of his adult life. IH currently lives in supported accommodation provided by the Local Authority and funded by the local NHS, but until 4 years ago he had been cared for in his family home, predominantly by his parents, who are Sunni Muslims, and an integral part of their local Muslim community. He has 3 siblings, all of whom are devout in their practice of their religion, in line with their upbringing. IH has a profound learning disability, and functions at the level of a 1-2 year old. He is not able to reliably communicate his preferences, and has no understanding of religious matters. He is reported to be very popular with his carers and greatly loved by his family.

The question arose of whether it was in IH’s best interests for him to:

i) Observe Ramadan
ii) Have his underarm and pubic hair removed

His parents were very anxious that IH should adhere as fully as possible to the tenants of the Islamic faith. His parents were of the view that he should not be required to observe Ramadan as he would not understand the withholding of food and liquid during daylight hours, and sought a declaration to this end. All parties shared this view. However, it was their view, which was shared by his social worker that IH should be made to feel as close to his religion as possible, and the shaving of his underarm and pubic hair would allow him to associate more closely with Islam, and feel proud of so doing. Other parties considered that as IH was not able to understand the five Pillars of Islam, nor religious practice, that the risk of harm to IH and his care team, as a result of IH’s unpredictable behaviours, in carrying out the trimming suggested that it would not be in IH’s best interests to engage in this activity.

The Court agreed with all parties that it was not in IH’s best interests to observe Ramadan. However, it concluded in respect of the trimming of underarm and public hair that it would not be in IH’s best interests for this act to be done for him. The reasons behind the decision are highly complex, and I strongly urge readers to look at the decision in detail. However, in principle, following receipt of evidence that IH had an elevated religious position due to his disabilities and as a result he would not be religiously disadvantaged by not having this act performed on him, it was not in his best interests to expose him to stress or risk during the hair removal process. This is despite the fact that if IH had capacity it is very likely that he would have followed the custom. It was important that the expert in the case, Dr. Mansur Ali, stated that trimming was merely a ‘recommended’ practice as opposed to the observance of Ramadan which is compulsory for those who can. A further important factor is that IH would not be regarded any less favourably by his family and community for not following this practice.

It must be underlined that the Judge in the matter made it very clear that each such question must be considered on its own facts, but he set out a very clear record of his decision making in this particular case, with a view to ensuring that it could be referred to for other similar cases in the future.