South Australian father of three, Matthew Werfel, was diagnosed with mesothelioma in 2017 after finding a lump in his groin. Mr Werfel worked as a fencing contractor as a teenager and was found to have been exposed to asbestos dust during that role. He was...
Our specialist Court of Protection solicitor, Sophie Maloney, recently represented a vulnerable adult in a complex case involving sensitive decisions in respect of religious practices of a vulnerable adult lacking mental capacity.
This case related to a 23 year old male with a diagnosis of severe autism spectrum disorder, learning disability and epilepsy. He is non-verbal as a result of his conditions. He will be referred to herein as ‘MA’ in the interests of anonymity.
MA had a high and complex level of needs for care and support and required 24 hour support to meet his needs. He had resided for many years at a specialist supported accommodation placement with weekend visits to the family home, where he would stay from Friday through to Sunday.
A dispute arose when his the family did not return return MA back to the residential placement one weekend, believing that it was instead in his best interests to remain living at home with his parents and siblings. The local authority had concerns that he was not receiving the necessary care and support that he required at home, and the risks that some of his challenging behaviours posed to his younger siblings. The parents disputed the concerns of the local authority and the suggestion that he or his siblings were at risk. As a result of the dispute between what the local authority and the parents considered to be in MA’s best interests, the local authority made an application to the Court of Protection on an urgent basis (due to the concerns in relation to his welfare at home) for best interests declarations to be made.
Due to his disabilities, MA was described to operate at the level of a 3-5 year old, and was assessed to lack mental capacity (ability) to make the following decisions:
- Where he should live
- The care that he should receive
- The contact that he should have with others
- In respect of any religious practices he should adopt, as he was part of a Muslim family and community
A report was prepared by a consultant psychiatrist within the proceedings confirming MA’s lack of capacity to make the above decisions.
The case concerned best interests decisions on MA’s behalf in relation to where he should live, the care that he should receive, his contact with his family, and in respect of the religious practices that he should adopt.
This case study is a focus on the decision to be made by the court in relation to religious practices. In relation to his residence and care, in summary, MA was moved from the family home to an interim supported living placement whilst the proceedings were ongoing. Following a report from an expert Independent Social Worker, his parents ultimately agreed that it was in his best interests to remain at the supported living placement on a permanent basis. In relation to contact, it was ordered at the two day final hearing that MA should have contact with his family a minimum of 3 times per week, with staff present to provide all of MA’s support during contact.
MA had been engaging in several Muslim practices with the guidance of his parents, including fasting during Ramadan, prayer, attending the Mosque, and regular removal of his pubic and auxiliary hair.
The psychiatrist reporting in the case confirmed that due to MA’s autism and level of disability, MA could not understand the abstract concepts necessary to make a choice as to religious observance. Although MA seemed at times happy to mimic what his family and others were doing when they followed such observances, he was assessed to be unable to understand their significance. For example, he was not able to understand the religious reason for the removal of his hair and the religious consequence of not having it removed.
The parents were of the view that it was in MA’s best interests to continue to engage in these religious practices. During the proceedings, however, the parents agreed with the local authority that it was not in MA’s best interests to continue to fast during Ramadan as this could interfere with MA’s Epilepsy medication and depriving MA of food when he did not understand the reason for this was agreed to not be in his best interests. This practice therefore ceased.
The remaining issue was whether it was in MA’s best interests to continue to have his hair shaved. This had been practiced for many years, by his father shaving MA in the bathroom with a disposable razor. Evidence was provided as to the risks of this practice on a vulnerable adult lacking capacity (with epilepsy and challenging behaviours) against the benefits to be gained.
At the time of this case, there was only one case law precedent on the issue of religious observance of an adult lacking mental capacity (Re IH (Observance of Muslim Practice)  EWCOP 9 Cobb J) and therefore the dispute in respect of religious observance was a novel and complex issue before the court. In the precedent case, Cobb J started with some important general observations concerning religion and disability:
“Health or social care bodies who make the arrangements for the care for adults who lack capacity owe an obligation, so far as is reasonably practicable and in the interests of the individual, to create a care environment and routine which is supportive of the religion of P, and to facilitate P’s access to, or observance of religious custom and ritual”.
In the precedent case, a religious expert was instructed to provide a report on the duties / requirements of a vulnerable adult lacking capacity to observe the tenants of Islam. The expert in that case confirmed that an exception was made in Islamic faith for the mentally disabled; people without mental capacity are excused from carrying out the tenants of Islam because they are considered to be in a ‘heightened state of spirituality’.
In Re IH, after weighing up all factors (including whether he would have observed this custom of shaving of auxiliary and pubic hair if he had mental capacity, and his dignity as a young adult) decided that the benefits of IH adhering to this ritual was not for his benefit, but for the benefit of others. The Judge commented that he was anxious to spare IH any additional stresses in his life and protect him from the risk of harm.
In MA’s case, however, MA was very much used to his hair being shaved and his family thought it would have been more distressing and confusing for him if this was to suddenly stop. At a two day final hearing, the Judge carefully considered the evidence of the Independent Social Worker, the local authority and the parents, including oral expert evidence. Weighed against the risks of shaving MA’s intimate areas with a razor, it was decided that given that MA’s father had been shaving his public and auxiliary hair in this way for many years, it was in MA’s best interests to continue engaging in this practice unless he showed any signs of objection or distress (which he had not done to date) - in which case the practice will be ceased and a review initiated without delay.
“Health or social care bodies who make the arrangements for the care for adults who lack capacity owe an obligation, so far as is reasonably practicable and in the interests of the individual, to create a care environment and routine which is supportive of the religion of P, and to facilitate P’s access to, or observance of religious custom and ritual. All forms of liturgy should, where practicable, be accessible to persons with disabilities. This view is consistent with Article 9 of the European Convention on Human Rights, and the right enjoyed by those who lack capacity as for those who have capacity” (Cobb J, Re: IH).
What is clear is that these are not issues that can be made by local authorities following a best interest process; an application to the Court of Protection is required to protect the vulnerable adult and make a decision in his or her best interests, weighing up all factors on a case by case basis.