18/07/2017
This case will be of interest to commissioners and providers when considering an individual's best interests in circumstances where P lacks capacity to make decisions about religious customs and practice.
Case |
IH (Observance of Muslim Practice) [2017] EWCOP 9 |
Topics |
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Practical Impact |
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Summary
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Mr Justice Cobb IH is in a supported living placement, provided by the Local Authority and commissioned by the CCG. His family, with whom he had lived until 3 years ago, are practicing Sunni Muslims. The application concerned to what extent it is in IH's best interests for him to be supported to actively practice two of the Islamic customs and practices:
All parties agreed that Islam provides an exception to the requirement to fast during Ramadan for those who lack "legal competence" and that as IH had never fasted previously, it was not in his best interests to do so. Judge determined that it was not in IH's best interests to have his pubic and axillary hair removed/trimmed as:
IH himself derived no benefit from him – as he lacked capacity and had no understanding of the religious context of the practice. |
Background |
IH is 39 years old. He was born in Pakistan but has lived in West Yorkshire all his life. He is from a Punjabi family. He suffers from a profound learning disability, and functions intellectually at the developmental level of a 1-3 year old. He also has atypical autism. He currently resides in a supported living environment which is provided by the Local Authority and commissioned by the local Clinical Commissioning Group. He has been raised by his family throughout his life within the Sunni denomination of Islam. Until 3 years ago, IH lived in his Punjabi speaking family home within a Muslim Community in West Yorkshire. His parents are described as 'devout' Muslims who believe that their adult son should adhere as fully as possible to the tenets of the Islamic Faith. Inevitably, at times the family struggled to cope with IH's behaviours; in 2008 he had two in-patient admissions under section 2 and section 3 of the Mental Health Act 1983. Increasing levels of support were offered to the family while at home. TH (IH's father) personally shaved IH's pubic and axillary hair for all the years in which IH was living at home and for one year beyond. IH's supported living housing commissioned by the local authority is not a culturally aligned home. IH is not able to care for himself and is assessed as needing 2:1 support, 24 hours per day. He is dependent on his carers for all aspects of his care. There were two separate applications in the case.
Dr Ali (lecturer in Arabic and Islamic Studies) confirmed:
The judge was wholly satisfied that it was not in IH's best interests for him to be expected to fast during Ramadan next month or indeed at all. The judge concluded that it was not in IH's best interests for his pubic and axillary hair to be trimmed. The Judge concluded that:
Although the local authority recognised the religious significance of the hair-trimming procedure for a person with capacity it argued that there is no religious obligation for the care home to assist IH with the procedure as he lacks capacity. |
Key Findings |
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This case summary was written by Legal Apprentice, Laura Pearce.
Please contact Hannah Taylor if you wish to discuss this case or any related topics further.