A County Council v MS and RS  EWHC B14 (COP)
MS was a Mormon. He was also mentally unwell and his property and affairs were managed by his local authority as his deputy. He wished to tithe 10% of a recent inheritance (amounting to just under £7,000) to the Church of the Latter Day Saints. His mother was extremely concerned as to the prospect of the donation. The local authority very properly brought the matter to the CoP. His then consultant psychiatrist considered that he did not have capacity to make the decision; MS asserted strongly that he did. A special visitor appointed by the CoP reported, and considered that he did have the requisite capacity.
In a detailed and fascinating judgment, District Judge Eldergill had to grapple both with the evidential questions that arose and rather more fundamental philosophical questions as to the interaction between mental illness and religious belief.
As District Judge Eldergill noted, in the majority of cases involving gifts, the statutory test of capacity in the MCA 2005 will differ little (if at all) from the common law approach set out in Re Beaney 1 WLR 770,  2 All ER 595. In that case, it was held that the relevant information included that (1) the person was making a gift; (2) the subject-matter of the gift; (3) the identity of the person to whom the gift was being made; and (4) the effect of the gift upon the person’s estate. As District Judge Eldergill noted (paragraph 68) “[i]n the case of a simple and trivial gift, such as giving a small present to a friend, there is not much to it and very little to grasp in order to make a valid gift. More significant transactions — those where the reasonably foreseeable consequences are more significant for the person concerned — by definition require the capacity to understand and weigh the more significant consequences.”
The medical evidence
The Special Visitor considered (paragraph 74) that:
- MS had a mental disorder. The “diagnosis [was] one of a schizoaffective disorder with also an obsessive compulsive disorder.”
- He “ha[d] a long-standing belief system that he is a prophet and that he is next to the trinity in status and powers. The beliefs do not change and have not been affected by treatment with neuroleptic medications.”
- He “ha[d] no insight into his condition and feels he has been abused by psychiatrists who do not understand or accept his true calling.”
- He did not have the capacity to litigate;
- He did not have the capacity to manage his property and affairs;
- At present, he had the capacity to execute an LPA for property and affairs (SV Report, page 7).
- As to his capacity to make “To make a gift of ten per cent of his property on the tithes principle to his church”:
Mr S understands the process of tithing and also the implications for his own finances if he gives away the £6,900.00 that he believes to be 10% of the original inheritance.
Mr S’s desire to give this money to the Mormon Church is part of his religious beliefs but not in my opinion part of his delusional belief system.
I could find no evidence that his wish to do this was part of any `revelation’, command or direct instruction from God.
On balance therefore I am of the opinion that Mr S does have capacity at this time to make a gift on the tithes principle to his church.
MS’s current treating psychiatrist agreed with most of the Special Visitor’s report. The difference between the two was as to whether MS’s desire to give this money to the church was part of his religious beliefs or part of his delusional belief system. MS’s treating psychiatrist, Dr M, considered (paragraph 80) that:
“… this issue is, of course, complex and addresses some real sensitivities. However, my opinion is that it would be reasonable for the Court to consider denying Mr S the right to pay this tithe on the inheritance he got some years ago. Mr S’s pathology centres around a deep core of religious delusions in the form of a well organised delusional system. The core features of this system are that he believes that he is a messianic, exceptional leadership figure and that God has chosen him personally over all other people to lead the church. He believes he has a special mission from God. His beliefs are out of touch and out of sync with the mainstream of Christianity and also, as far as I understand, are out of sync with the beliefs and practices of his own church and that may be part of the reason why they are reluctant to allow him to become a member of the church. In some ways Mr S seems to have an ambivalent relationship with the church, on one hand he seems desperate to join and be recognised by his church and on the other hand he finds a special kind of satisfaction in being different, more extreme and at times misunderstood by his church as he feels that this was the lot of all religious illuminated leaders in the past. My opinion is that his beliefs about the tithe are an extension of his delusions and stem directly from them. He again demonstrates his tendency to practice religion in a way that is delusionally motivated based on a concrete black and white understanding of the Bible and is not really a requirement of all of his church members as I understand it.”
Impairment of the mind or brain?
District Judge Eldergill noted that it was common ground that MS had “strong and sincere religious beliefs and values and that what he sees as religious zeal others interpret as beliefs held with delusional intensity” (paragraph 85). As he continued “[t]he beliefs and actions interpreted by others as evidence of mental illness include his belief that a fellow resident was the devil and his belief that the only people more powerful than him were God, Jesus Christ and the Holy Ghost” (paragraph 86).
District Judge Eldergill continued:
“87. I accept that sometimes it can be difficult to distinguish between a religious delusion and a particular religious belief or practice. There is a risk of pathologizing religious beliefs when listening to content alone. It is important to look at the degree of conviction, the pervasiveness of beliefs, the context of the individual’s spiritual history and deviations from conventional religious beliefs and practices when determining whether a religious belief is authentic or delusional.
88. As a judge I must decide the case on evidence. As MS pointed out himself, he has a problem establishing on evidence that he is a prophet and the first outside the Godhead. The way he put it was that he has a ‘Mount Everest of a credibility problem’.
89. The balance of the evidence before me is that he has an ‘impairment of, or a disturbance in the functioning of, the mind or brain’ and that therefore is my finding.”
Effect on decision-making
Notwithstanding the fact that MS suffered from an impairment of, or a disturbance in the functioning of, the mind or brain, District Judge Eldergill went on to hold that he preferred the evidence of the Special Visitor that it could not be demonstrated that MS’s desire to give this money to the Mormon Church was part of his delusional belief system. In reaching this conclusion, he placed particular emphasis upon the fact that: “[t]he fact that a person has a grandiose belief with a religious content does not demonstrate that the whole of their religion is delusionally-based and caused by mental illness. It may simply be that the content of their belief-system when they become ill reflects and accentuates pre-existing interests, concerns and pre-occupations, in this case a concern with religious and moral themes” (paragraph 105); that “[t]he fact that relatively few people now tithe is neither here nor there. Nor does it matter whether a person’s belief in tithing is a core belief required of members of a particular religion or a deviation and a matter of individual conscience” (paragraph 111); that “[i]t is not sufficient that other people think his proposed tithe is unwise, a misinterpretation of a religious text or is misguided by reference to their own secular beliefs and values” (paragraph 112); and that MS’s belief was a matter of faith (paragraph 113).
District Judge Eldergill went on to consider two possible objections to MS’s capacity, neither of which were properly articulated or developed by or on behalf of the deputy. The first was that “MS’s belief or hope that a tithe may be followed by God’s financial bounty demonstrates that his capacity to understand the foreseeable consequences of the tithe, and the weight attached by him to objections that he cannot afford it, is compromised by mental illness” (paragraph 116). He noted that the evidence was ambiguous, but (in a possibly unprecedented piece of judicial decision-making) placed some emphasis upon the fact that the belief or hope was founded upon a correct quotation from a particular passage in the Bible. The evidence was, in District Judge Eldergill’s opinion, “insufficient to displace the presumption of capacity. He may hope or have faith that a material reward will follow but his belief in the duty to tithe is not dependent on this” (paragraph 119).
The other possible objection was that MS’s “decision-making capacity has been undermined by mental illness in a more general but equally fundamental way: It is the form rather than the content of his thought that has been affected with the result that he is unable to think clearly or straight about the matter. This type of objection is associated with concepts such as concrete thinking, tangentiality of thought, loosening of associations, etc” (paragraph 120).
As District Judge Eldergill noted:
“121. There is a single reference to MS having a concrete black and white understanding of the Bible. However, many religious people take a literal view of their religious texts. There are also references to thought processes that are parenthetical or ‘rambling’ at times. However, the case was not argued in this way and the deputy’s objection is based on the content of his thought not its form. One can speculate about the sequence of events in 2004 and 2005 but my decision must be based on evidence and it is lacking. Furthermore, Dr T is a very experienced consultant and he has not raised the issue or found MS to lack capacity on such a basis.
122. The issue is finely balanced. In my view the presumption of capacity has not been displaced and the ‘invisible weight of the presumption’ tilts the scales in his favour.”
District Judge Eldergill went on to hold that, even had he found that MS lacked capacity, he would have authorised the tithe on his behalf, and his reasoning (although obiter) is so illuminating of the proper approach that should be taken that the relevant passages merit reproduction in full:
“124. Mr S tells me that he prizes his independence and autonomy and wishes to enjoy it more fully. This is important.
125. The law has always sought to show due respect for liberty of conscience and religious belief and the European Convention on Human Rights reinforces this. Even if a person lacks capacity in law to make a religious gift, there remains the need to show respect for genuinely held beliefs and values. Good reasons are required to interfere in matters of conscience and spiritual belief. A person’s religion is no less real to them because some of their beliefs may be coloured by illness and their conscience is no less offended when they are not permitted to practise their religion. In MS’s case, both his conventional and unconventional religious beliefs are well-established and unlikely to change in time. This is not a situation where ambiguous beliefs are being reinforced or acted on precipitously, or it is likely that he will regret his tithe in the foreseeable future. His religion is now part of his life and is embedded in his existence. What he wishes is now his will. Even if his choice is founded on a belief that facts exist which do not, it is now his authentic voice and a true expression of his mind and the world within which he moves; and, like everyone, he needs to find peace.
126. The insights of writers such as Sims (the former President of the Royal College of Psychiatrists), Clark, Kroll and Agosin are also very relevant. The content of a delusion often has meaning for the individual and may be an adaptive response, combating purposelessness and hopelessness. Clark has noted that for patients with psychotic disorders, and with schizophrenia in particular, religious beliefs can be a source of meaning, hope, strength, and recovery (See SM Clark and DA Harrison, How to care for patients who have delusions with religious content, Current Psychiatry, Vol. 11, No. 1, 47 at 48, and the authorities cited therein). Many people who experience mental illness identify themselves as religious and use religious activities or beliefs to cope, so that one must take great care before deciding that it is in their best interests to interfere with this expression of where they are in their lives.
127. The size of the gift is significant but one must keep it in proportion, and the proportion is that he retains 90%.
128. The fact that MS wishes to make his tithe to the Church of the Latter Day Saints rather than, say, the Church of England is irrelevant. It is not my function to interfere with people’s religious or political preferences and choices but where possible to give expression to their wishes and beliefs.”
District Judge Eldergill parted company with the psychiatrists and held that MS had capacity to conduct the litigation. He noted, in particular, that the substantive and procedural issues in this case were not complex and were well understood by MS, and that his belief that he was a prophet did not impinge on his capacity to argue and present his case with regard to the tithe and the other litigation issues. As he noted (paragraph 130) “[MS] has prepared and presented his case very ably and I cannot identify any point of substance in support of his position that he has not articulated.”
District Judge Eldergill indicated that he did not consider that the evidence before the CoP did not yet support placing the management of all of MS’s property back under his own control, but that all the options had not yet been fully explored because the application before him related only to the tithe. He noted, however, that as the Special Visitor had expressed the opinion that MS had capacity to make an LPA, for property and affairs, MS should “discuss the advantages and disadvantages of this with a solicitor, with a view to making his own protective arrangements and asking the court to endorse these arrangements (see paragraph 12 of Schedule 1 to the Mental Capacity Act 2005). The reasonable costs of obtaining such advice and assistance should be authorised as necessary by his deputy” (paragraph 133).
District Judge Eldergill concluded the judgment by praising the local authority for bringing the application on MS’s behalf and for its respect for his dignity, wishes and feelings.
It is distinctly cheering to be able to report upon the second case in as many days from a judge grappling so acutely with the requirements of the MCA 2005, both in terms of the assessment of capacity and (albeit obiter) the assessment of best interests. The sensitivity to the need to establish whether or not there was a causative nexus between the impairment of the mind or brain and the functional ability of MS to make the decision in question is, in particular, entirely PC-compliant (even if the case is not mentioned).
It also worth in my view making a special mention of the fact that this is precisely the sort of case that the local authority should have brought to the CoP rather than purporting to exercise its powers as deputy to (to apply Neary) stifle a real debate, and the (unnamed) local authority should therefore be commended for so doing. It is worth noting in this regard that all parties had agreed that, in order to keep the costs proportionate, District Judge Eldergill could determine the matter by way of telephone hearings, written evidence and submissions. If the terrible pun can be excused, the case therefore stands as evidence that a CoP application about heaven need not cost the earth.