The Mental Capacity Act 2005 established the Court of Protection, enabling the High Court to settle disputes in relation to an individual’s care and welfare. The Act sets out a two-stage test in determining capacity, that is:
- Whether the individual has an impairment, or a disturbance in the functioning of, their mind of brain, whether as a result of a condition, illness, or external factors such as alcohol or drug use;
- Does that impairment or disturbance mean the individual is unable to make a decision when they need to.
Capacity can fluctuate over time, and indeed an individual can be deemed to have capacity to make some decisions and not others. If found to lack capacity to make a decision the Mental Capacity Act states the decision in question must be made in an individual’s best interests. In the most extreme cases it may be that an individual is no longer able to remain in their current home, ‘deprivation of liberty’ pursuant to s4A should only be used if it is the least restrictive way of keeping them safe or ensuring they receive the right medical treatment.
The decision in IH (Observance of Muslim Practice) [2017] EWCOP 9 demonstrates types of disputes the Court will settle once an individual is found to lack capacity. The facts of the case involved a 39 year old Muslim man suffering from autism and severe learning difficulties, functioning intellectually to that of a 1-3 year old. IH spent the first 35 years of his life being cared for and living with his parents. He was subsequently moved to a supported living environment provided by the Local Authority. Two issues were brought before the court:
- An application made by the Official Solicitor for a declaration that it was not in IH’s best interests to fast during the month of Ramadan
- An application by IH’s father that it was in IH’s best interests for his axillary and pubic hair to be trimmed in accordance with Islamic practice in so far as it was safe to do so
To be able to make these decisions IH would need capacity, and as per s3(1)(a) of the Mental Capacity Act, IH was not unable to understand the ‘information relevant to the decision’. Relevant information involved what fasting is, the length of the fast, the health-associated reasons, the religious reasons and the effect of fasting on the body.
The first matter was agreed by parties; indeed Islam does not require the disabled, terminally ill and minors to observe Ramadan. The Court was satisfied in making the declaration.
The second decision posed more difficulties. IH’s father had been shaving IH’s public and axillary hair whilst IH lived in his care and a year thereafter also. It was IH’s father’s case that he wanted his son to adhere to the tenets of the Islamic faith insofar as possible without whilst placing as little burden on IH as possible. The Official Solicitor accepted the religious significance of hair-trimming, however disputed that IH should observe this due to his lack of capacity. Further that, if IH was given assistance or it was carried out for him, his carer may be harmed in the process.
In making its decision the Court had before it evidence from Dr Peter Carpenter, honorary Consultant Psychiatrist in Learning Disabilities. Dr Carpenter concluded that given IH’s condition he would not be able to understand which parts of the hair are being removed, any such religious purposes and the consequences of it, therefore lacking capacity to make the decision for himself. The Court also had evidence from by Dr Mansur Ali, lecturer in Arabic and Islamic Studies at Cardiff University. Dr Ali’s report set out that there was no obligation on a Muslim without capacity to trim or shave his pubic and axillary hair, or for another individual to step in and do this for him. Dr Ali advised trimming or shaving of pubic and axillary hair was deemed to be a normal human ‘right’ in Islam, the removal was not obligatory but would be viewed as a minor sin of unattended, as IH did not have capacity it was not recommended practice of him to carry out and his carers not doing so were not violating his religious rights. Furthermore that avoidance of harm took priority, in that Islam does not permit a situation to be created where the observance of religious custom would be likely to cause harm to IH or his carers.
Evidence was also given by IH’s key social worker, who felt Islam was a key characteristic of IH’s identity and that observance of religious practices should be supported where possible. Further that his culture and his background were something that IH should be proud of. Justice Cobb accepted that IH should be supported in his religious practices, but that IH had no capacity to understand the concept of Islam or to be able to actively feel proud of it.
Justice Cobb accepted that there was no religious obligation on IH to shave or trim his axillary or pubic hair and that given his understanding he would derive no religious ‘benefit’ from having the procedure undertaken. It was further concluded that whilst Health and Social Care bodies who care for adults without capacity had a duty so far as is reasonably practicable to create a care environment which would help facilitate IH’s religious observance, consistent with Article 9 rights under the ECHR to religious freedom.
The Mental Capacity Act required a somewhat artificial assessment of IH’s beliefs and values that would be likely to influence his decision under s4(6)(b) if he had capacity, but on what basis could the court really make the conclusions that this provision requires given that IH’s condition had been lifelong. In any event, Justice Cobb was prudent to make reference to Briggs v Briggs [2016[ EWCOP 53 and distinguish it on the basis that the considered case did have some actual evidence of what the wishes and feelings would be.
The judgment given in IH (Observance of Muslim Practice) [2017] EWCOP 9 was not an attack on a person’s right to practice their religious beliefs and cultures and should not be misconstrued in this way. The decision makes clear that had IH been able to appreciate the religious significance of being in a state of cleanliness and derive any religious benefit the outcome would have been different.
Nasbin Begum
