28th June 2017

How should we make decisions on someone’s religious practice?

A very recent case in the Court of Protection looked at the question of how providers, and commissioners, make decisions about the best interests of a person from a minority culture and religious faith.

Issues arose about how far a severely disabled man, who lacks capacity to make these decisions for himself, should observe the religious customary practices which were of great importance to his family, who, in this case, were Sunni Muslim.

Useful guidance

In coming to a decision, the judge said, ‘I have set out my reasoning fully having been advised by the Local Authority that the principles may be of assistance to other cases in their area and more generally to adult care services which have a responsibility for Muslim adults who lack capacity’ [my emphasis]. The judge did, of course, remind us that every case is different, but it’s important to consider the right factors, in the right way.

The kinds of situations described here do crop up in our diverse community; we care for people from a wide range of religious and cultural backgrounds, which we may not always understand in detail. While being very specific in the actual facts, this gives really useful guidance for providers as well as for social workers.

The questions in this case

The case is about the best interests of IH, a man of 39 living with a profound learning disability and other disabilities. He is greatly loved by his family, who cared for him at home until 4 years ago, when he went into supported living .

His placement is provided by the local authority and funded by the local clinical commissioning group. He has almost no speech, and is reported to function at the level of a child aged about 1 – 3 years old. He is popular with his carers, despite sometimes, when upset, being violent towards himself and others.

Some aspects of his faith and culture have been insisted on by the local authority from the start: for example, IH is given Halal food despite having no understanding of dietary laws.

This case was brought to answer two more complex questions:

  • Is it in IH’s best interests to be exempt from being made to fast during Ramadan? and
  • Is it in IH’s best interests for his axillary (armpit) and pubic hair to be shaved, in accordance with Islamic cultural and religious practice, in so far as it is safe and reasonable to do so?

How is capacity defined in Islam?

IH clearly lacks capacity as defined in the Mental Capacity Act (MCA) to understand why he should either be made to fast during Ramadan and why he should have his body hair shaved off.

The court consulted an expert in Islamic law and religious practice, Dr. Mansur Ali, and found that there are significant similarities between the MCA and Islamic law (Shari‘a) in how lack of capacity is identified, for example, that capacity is decision-specific.

But, while people are presumed to have capacity, as they are in the MCA, a lack of capacity, in Islam, has to be confirmed by a court.

Dr. Ali explained that a Shari‘a court would accept the word of an expert, her, a learning disability consultant psychiatrist, who was clear that IH lacked capacity for all but the most simple decisions.

How are best interests worked out?

The MCA is clear that relatives must be consulted and their views taken into account, together with the views of others ‘interested in the person’s welfare.’

IH’s father, TH, explained that he had been told by an Imam that the shaving of body hair is compulsory for adult males who follow Islam, so he had shaved his son until IH moved into supported living. It had not happened since, for fear that IH, with unfamiliar carers, would be likely to lash out.

His key social worker, also a Muslim, told the court that in her opinion, keeping to these practices would enable IH to be proud of, and linked to, his cultural and religious background.

The judge, however, said that the social worker had misunderstood the extent and effect of IH’s learning disability, in that he is simply not capable of understanding religious or cultural reasons.

From reading the case report, it appears that everyone in court was moved by Dr. Ali’s explanation 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.’ IH is pure, by nature of his disability.

The decision

Everyone involved, including IH’s family, agreed with the judge that:

  • IH is under no obligation to fast during Ramadan; and
  • It is not in IH's best interests that his body hair be trimmed in accordance with Islamic custom for capacitous followers of Islam.

Implications for practice

  • It is heartening that real agreement was reached in this case, and that an Islamic understanding of lack of capacity so closely mirrors the MCA.
  • Where decision makers may not share the cultural and religious beliefs of a person receiving services, every care must be taken to respect them as far as possible, while considering the best interests of the person.
  • IH’s father truly thought that shaving him was compulsory, whereas Ali was able to explain the actual, more nuanced position. It is often helpful to seek guidance from a person of standing in that community whose expertise will be respected by all parties.
  • It will be very useful in practice to remember that, in Islam, a person lacking capacity is perpetually in a state of heightened spirituality, and hence exempt from practising the major rituals and common practices of their faith.

For the case see: http://www.bailii.org/ew/cases/EWCOP/2017/9.html

For how to make best interests decisions, see MCA code of practice chapter 5: https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice

*All information is correct at the time of publishing

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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