Thu, 15 Jun 2017
Re IH (Observance of Muslim Practice)  EWCOP 9 Cobb J
Substituted decision making and the best interests test
Nageena Khalique QC represented the local authority in this case
This case brought into sharp focus the difficulties relating to incapacitous adults and Islamic religious practices and customs, and what ultimately was in P’s best interests. It serves as a useful reminder of the fundamental importance of the guiding principles of the Mental Capacity Act 2005. Cobb J considered 3 days of evidence with great sensitivity, in relation to the custom of removing pubic and axillary hair, a practice familiar to the Muslim community. In his final analysis, Cobb J acknowledged that the best interests test should also contain "a strong element of 'substituted judgment'.
The application before the Court concerned IH, a 39 year old Pakistani man who had lived in West Yorkshire all his life. He was described as suffering with a profound learning disability and atypical autism with the developmental level of a 1-3 year old. Until 3 years ago he lived with his family, who were all devout Muslims, at home. At the time of the COP proceedings, he was in full time residential care.
The issue concerned IH’s general observance of religious custom and practice while in his supported care home. Initially, the Official Solicitor had sought a declaration that it was not in IH’s best interests for him to fast during the daylight hours of Ramadan but as he had never done so and no party was suggesting that he should, this was not in dispute. The issue which remained live was whether a declaration should be granted in respect of IH’s father’s application that it was in IH’s best interests to have his axillary and pubic hair trimmed in accordance with Islamic cultural and religious practice insofar as it was safe and reasonable to do so. Expert evidence from a lecturer in Arabic and Islamic Studies was necessary.
The court’s decision
1. Cobb J was wholly satisfied that it was not in IH’s best interests for him to fast during Ramadan or at all. The Judge accepted the expert evidence which confirmed that Islam stipulates different arrangements for those who lack ‘legal competence’.
2. Legal competence in Islamic terms as defined by the expert is “a capacity or a potential for mental functioning, required in a decision-specific manner, to understand and carry out decision-making. Competence is always presumed; its absence or inactivity has to be affirmed by a court.” This has a striking resemblance to the guiding principles in the MCA (section 1).
3. In Islam, as in this case, the expert would defer to medical practitioners or experts on the issue of legal (mental) competence and “their opinion would be likely to be deemed valid and authoritative in the Shari’a” [30-32].
1. Turning next to the question of whether IH should be subjected to trimming of his pubic and axillary hair, Cobb J reflected on the expert evidence which stipulated 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.
4. He concluded that it was not in IH’s best interests for his pubic and axillary hair to be trimmed stating that “I have been advised, and it is accepted, that this is not required of him in accordance with the tenets of the Islamic faith; there is no other benefit to IH in undergoing this procedure, which carries avoidable risks of harm to IH and/or his carers were he to become stressed in the process”.
The fully reasoned judgment is a must for those who may be involved in the care of incapacitous adult Muslims. However, the court was keen not to ignore the possibility of a different outcome and the influence of other factors, such as the level of P’s cognitive functioning, his past wishes and feelings, the nature and duration of his/her incapacity may give rise to a very different set of circumstances which may alter the balance when looking at the section 4 MCA checklist.
Cobb J noted: “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. It must be recorded of course that each best interests decision must turn on its own facts.”
Best interests analysis
Section 4 guided the court’s determination of IH’s best interests and the court is enjoined in each case to have regard to the wide range of “relevant circumstances” (section 4(2)), though in relation to those identified in (i)-(iii) below, only “so far as reasonably practical” (section 4(6)):
- IH’s past and present wishes and feelings (section 4(6)(a));
- The beliefs and values that would be likely to influence his decision if he had capacity (section 4(6)(b));
- The other factors that he would be likely to consider if he were able to do so (section 4(6)(c))
- The views of his family, and his carers (section 4(7)(b)).
The court then considered its role in “substituted decision-making” having regard to the Supreme Court decision in Aintree University Hospitals NHS Trust v James  UKSC 67,  1 AC 591 noting that “the best interests test should also contain "a strong element of 'substituted judgment'" (para 3.25), taking into account both the past and present wishes and feelings of patient as an individual, and also the factors which he would consider if able to do so (para 3.28). This might include "altruistic sentiments and concern for others" (para 3.31)
Cobb J referred to some key passages in Aintree as follows:
- “this emphasis on the need to see the patient as an individual, with his own values, likes and dislikes, and to consider his best interests in a holistic way, the Act gives no further guidance” (at );
- Illustrative of the width of section 4, the Supreme Court added: “in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological” (at );
- “The purpose of the best interests test is to consider matters from the patient's point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient's wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament” (at ).
Fasting in Ramadan
Certain groups are exempt from fasting; the incapacitous, minors, the ill, pregnant women, those who are travelling. Those who are exempt are not morally culpable.
Trimming or shaving of pubic and axillary hair
The removal of pubic and axillary hair for the legally competent Muslim is ‘mustahab’ or ‘recommended practice’. As IH does not have ‘legal competence’ it is not even recommended practice as there is no obligation on his carers to remove IH’s pubic or axillary hair.
‘No hurt no harm’ is a cardinal principle of Islamic bioethics; therefore it would be wrong to create a situation in which observance of Islamic custom would, or would be likely to, cause harm to the person (i.e. IH) or his carers.
The expectation is that the court will take account, so far as is reasonably ascertainable “the beliefs and values” of that person which would be likely to influence his decision if he had capacity (section 4(6)(b)); these must include, where relevant, religious beliefs and values.
This is illustrated in IH’s case by the fact that the Local Authority provides IH with a Halal diet even though IH himself would not know that the food he ate was Halal, or its significance. The Local Authority recognises the need to respect IH’s religion.
It is impractical for IH to follow the faith where the disadvantages of observance of religious ritual outweigh the advantages.
The court therefore applied the best interests test with a strong element of substituted decision making and a focus on IH’s particular circumstances.
Nageena Khalique QC
12 June 2017