England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF MS

		Court of Protection, First Avenue House, London
		20 March 2014

Application by the local authority deputy for property and affairs — Whether P has capacity to tithe 10% of his inheritance to the Church of the Latter Day Saints — Mental Capacity Act 2005 test and the common law test in Re Beaney — Whether such a gift is in P's best interests — Whether P has litigation capacity

§1 — FORMAT AND HEADINGS

1. This judgment is structured under the following headings:

§1 —	Format and Headings	Paragraph 1
§2 —	Introduction	Paragraph 2
§3 —	Procedure	Paragraph 6
§4 —	Background Facts	Paragraph 10
§5 —	Positions of the Parties	Paragraph 23
§6 —	Law on Mental Capacity and Gifts	Paragraph 52
§7 —	The Special Visitor's Report	Paragraph 73
§8 —	Findings on the Capacity Issue	Paragraph 81
§9 —	Best Interests	Paragraph 123
§10 —	Capacity to Litigate	Paragraph 129
§11 —	Other Matters	Paragraph 131
§12 —	Concluding Remarks	Paragraph 134

§2 — INTRODUCTION

2. This is an application by the local authority deputy for property and affairs of MS.
3. The local authority seeks a direction from the court as to 'whether to authorise MS's request to donate an amount of £6832, which [is] 10% of his recent inheritance, to his church,' the Church of the Latter Day Saints.
4. MS's mother RS had 'expressed a strong opposition to her son making [the] donation' and there was concern about whether he appreciated the implications. He was assessed by his then consultant psychiatrist Dr VS to lack capacity to make the decision. The Court's directions were sought.
5. By an application notice in these proceedings dated 8 October 2013, MS responded with his own applications. He seeks declarations that he has capacity to litigate, make a tithe, to manage his property and affairs and to execute a Lasting Power of Attorney for Property and Affairs.

§3 — PROCEDURE

6. Standard directions as to the filing of evidence were given.
7. None of the parties were legally represented and there was no agreed court bundle of documents.
8. A consultant psychiatrist Special Visitor, Dr T, reported to the court in writing on 14 August 2013.
9. With the consent of the parties, and in order to keep the costs proportionate, I have determined the matter by way of telephone hearings, written evidence and submissions.

§4 — BACKGROUND FACTS

10. MS (also 'Mr S' and 'M' for variation) is 40 years old. He was brought up abroad and came to the UK with his mother and sister just over ten years ago. Initially he lived with his mother but now resides in supported accommodation.
11. Mr S has been involved with mental health services for many years. His past diagnoses include bipolar affective disorder, schizophrenia and schizoaffective disorder. The prescribed medication has included Olanzapine, Lithium and Clozaril. He receives support from his local community mental health team (CMHT) and is the subject of a community treatment order under section 17A of the Mental Health Act 1983.
12. In late January or early February 2005, he gave a tithe of his surplus property and capital to his church, amounting to some £1600-1700. He says that he was 'well' at the time. It 'was only on around 9 June that year that he stopped taking his prescribed medication, following which he was 'locked up' some 13 days later'.
13. In around June 2005, MS was admitted to hospital after discontinuing prescribed medication and then detained under the 1983 Act. His reasons for stopping medication seemed to be 'associated with religious texts' (Special Visitor Dr T's Report, para. 19 — referred to from now on as the 'SV Report'). He was preoccupied with religious beliefs. He believed that he had special gifts which made him 'as gifted as God' (SV Report, para. 21).
14. Mr S again stopped taking medication in October 2012. It is reported that he had an altercation with a fellow resident whom he thought was 'the devil and needed to be vanquished from his house' (SV Report, para. 25). On admission to hospital, he was expressing delusional beliefs about being a Messiah … He spoke at length that he considered that the only people more powerful than him were God, Jesus Christ and the Holy Ghost' (SV Report, para. 26).
15. As concerns his property and financial affairs, in 2007 the Court of Protection made an (old-style) Extended General Order in respect of him, appointing the local mental health NHS Trust as his receiver. That Order allowed the receiver to make gifts from his property of up to £500 to any one person or charity in any one year.
16. According to the original medical certificate prepared by a psychiatrist Dr DS in April 2006, Ms S had suffered from a schizoaffective disorder since around 1991, as a result of which he lacked the capacity to manage his own property and affairs:

'Mr S has always lived with his mother who has been his main carer. His beliefs include that he is one position below the Holy Trinity and so has special powers to change the world. Although he has never acted upon this belief, he has given considerable amounts of money to his church disregarding his own needs. He has periods when he feels he must starve himself'.

17. Despite treatment, there had been little change in his overall condition during the previous ten years. His 'financial affairs need to be protected as he may use them in a manner which is not in his best interest'.
18. The Court's old 'legacy file' records Mr S's entitlement to free after-care services under section 117 of the Mental Health Act 1983. He was receiving approximately £390 per month in Disability Living Allowance and Income Support, from which he made regular charitable contributions to his church of £20 per month. He was a Mormon. His mother held £1500 on his behalf which his church had returned after a gift to them was questioned by her.
19. When the Mental Capacity Act 2005 came into force, the relevant NHS Trust automatically became MS's deputy for property and affairs. On 27 April 2011, a new court order made by Senior Judge Lush appointed the relevant county council as his deputy in place of the NHS trust.
20. MS has not made a Will, nor has he executed a Lasting Power of Attorney (or an Enduring Power of Attorney).
21. Shortly before this application, MS received £68,773 as a result of a capital and income distribution from a trust set up by his mother RS's parents but inherited by him under his late father's Will.
22. His other significant asset is a 26% share of the family home occupied by his mother and sister, which home was purchased in 2007 for £250,000.

§5 — POSITIONS OF THE PARTIES

23. The positions of the parties were as follows:

Mrs S (MS's mother)

24. Mrs S told me that when her son's financial affairs were placed under the court's jurisdiction she was confident that they would be 'utilised for his care and in his best interests. I am therefore surprised and distressed that consideration is being given to his request to donate such a large sum to his church'.
25. She wrote to say that:

(a) 'We have no idea how much pressure is put upon M by his church to donate or tithe his money'.

(b) 'Some years ago when M was clearly unwell, his church accepted a donation of about £1500 or more from him. I was able to get the money refunded, although this took some time'.

(c) If his entitlement to benefits were to change, he would become the financial responsibility of his mother and/or sister.

(d) 'This means effectively that either the State or my family is making a donation of £7,000 to the Mormon Church.'

(e) 'As you will gather, I am personally strongly opposed to MS being permitted to make a donation of this size to … his Church'.

26. Subsequently, in a letter dated 21 September 2013, Mrs S explained that she had not taken on the role of receiver when the initial order was made because

'this would have resulted in endless disagreements and ill feeling between us, which was something I wanted to avoid. For many years MS has given unspecified amounts of money to anyone who asks him, whether or not they are known to him. I believe he still does this. I believe therefore that he remains very vulnerable financially'.

27. It is convenient to deal immediately with some of these points:

(a) The statement that 'we have no idea how much pressure is put upon M by his church' is simply another way of saying that there is no evidence that pressure has been applied.

(b) It is highly unlikely that Mr S will become the financial responsibility of his mother and/or sister. He is entitled to free after-care services under section 117 of the Mental Health Act 1983. An individual's parents and siblings are not liable in law to pay the cost of their public services.

(c) It is the case that MS's mother and sister benefit from his 26% contribution to the family's accommodation. It is possible that this benefit may come to an end sooner than would be the case if no tithe was made. In the future the 'state' might seek to acquire his asset as a contribution towards his care costs. However, this is subject to his entitlement to free section 117 after-care, CRAG regulations and the fact that he himself does not intend to cash in his asset.

(d) The state is not making a donation to the church and nor is his family, either in a literal or figurative sense. MS is not depriving himself of capital in order to avoid paying for public services or to gain a personal financial advantage at the expense of other citizens. In such circumstances it is not the case that a private donation to a church, charity or political party is a donation made not by the individual giver but by the state or other family members.

28. While noting and respecting his mother's strong opposition and her sincere concern for his welfare and interests, in my opinion these objections are of limited assistance in determining MS's capacity and best interests in Mental Capacity Act terms.

The deputy (local authority Applicant)

29. The deputy sought the court's guidance and directions because of MS's own strong wishes, his mother's strong objections, the reservations expressed by professionals about his capacity to make the gift and the extent to which it was in its best interests.
30. The local authority submitted that if the tithe is made then MS's capital will decrease to the level at which he needs to claim state benefits some 56 weeks sooner than will be the case if no donation is made:

'It was explained to MS that the implication of donating this money to his church would be that it would bring forward the date that state benefits would need to be reclaimed' (Witness statement of CB on behalf of the local authority, dated 29 November 2010).

31. I do not think this helps me. When people with finite resources give money to charity in such circumstances they are not required to calculate the effect of their gift on future state benefit claims or to regard themselves as precluded from acts of charity.

Dr VS

32. The original capacity certificate filed by the deputy was completed by Mr S's former consultant psychiatrist, Dr VS.
33. Dr VS reported that Mr S suffers from a schizoaffective disorder and that, 'His decisions are based on his fixed beliefs.'
34. The proposed gift was made with free will and was 'consistent in his [purported] decision'.
35. His mother had been consulted and the doctor had discussed the issue with her.
36. 'We considered his cultural beliefs and values and the impact of his mental illness on his cognitive capacities'.
37. Although MS had sufficient information to make a decision concerning the tithe, could retain it and communicate his decision, he could not understand and weigh the information. Therefore, he lacked capacity to make the decision in question: He 'is not able to weigh the information given about his financial state and the consequences of donating money as part of making his decisions'. Furthermore, he would not regain capacity soon enough to make the decision for himself although it was possible that in 'a few years time' he might gain 'some insight' into 'the consequences of his generosity and his need for money'.

Mr S's position

38. In his application notice and acknowledgment of service, Ms S says he believes 'that he has the capacity to run his own financial affairs'. He wishes 'to dispute the basis of the original Court of Protection order, when I was deemed to be inclined to give excessive amounts of money to my church …. I wish the decision for my affairs to be managed by the Court of Protection to be reversed.'
39. With regard to his proposed tithe:

'I simply wish to abide by the Old Testament principle of giving a ten percent tithe. This is standard practice in my church; not me being exploited.

Generally, I wish to enjoy the right of obeying my church's teachings on financial matters.

With regards to my financial affairs, my decision to give a tithe to my church is both rational and Biblical.

If I wish to give money to people in need from time to time, I believe that to be my prerogative.

I have been managing my Court of Protection allowance, I believe, more than competently. I have not made any unreasonable demands on my deputy.

I prize my independence and autonomy, and wish to enjoy it more fully.'

MS's letter

40. MS set out his case in greater detail in an undated 14-page letter to the Court in which he made the following points:

Capacity to litigate

41. MS would welcome the opportunity to advance his convictions and arguments, which he accepted might appear radical and unorthodox. He disagreed with Dr T's view that he lacks litigation capacity. Although he does repeat himself, it was unfair to characterise his 'communication style as rambling'. He did not cope as badly as claimed with his two Mental Health Tribunals in 2013, although he was suffering from akathisia and, 'as I have acknowledged, my performance was less than commendable'. However, one could not generalise on the basis of one or two instances.
42. His letter continues (pp.3-4):

'A word now on my very far from pauline performances when my case was heard (to allude to the Apostle Paul, and his performance each time his case was heard. Key to Paul's success when his case was heard (though, if I'm not mistaken, he perished after his case was heard, a second time, before Nero) was his enjoying the gift of the Holy Ghost, which my church will not confer on me because of a doctrinal difference – more precisely, a disagreement over the interpretation of two passages of important doctrine. Enjoying the gift of the Holy Ghost was a central reason for the brilliance of Paul's defense when his case was heard: in the Book of Mormon it states that those who have received the gift of the Holy Ghost (and who keep, or obey, the commandments) can speak with the tongue of angels. Now, as is stated in the reports, I claim to be a prophet, and the first outside the Godhead … in other words, I claim that only the Father, Son and Holy Ghost are greater beings than I am. Parenthetically, I have never claimed to wield as much as, or almost as much power as, they — this is manifestly not so. I do however believe, by revelation and inference, that if I prove faithful, I will after Judgement Day wield as much, or almost as much power as they presently do … In making this claim, I have a Mount Everest of a credibility problem. Where, then, are all your Nobel Prizes? You might ask ….

To defend, once more, my claim to be the first outside the Godhead, Joan of Arc had no evidence that she was, as she claimed, sent by Heaven to save France, and drive the English into the sea — she was a sixteen year old girl! She had no evidence that she had seen the archangel Michael, and St Catherine and St Margaret. All she had was her word. As it was with Joan, so it is with me.'

43. MS writes that psychotropic medication has the effect of preventing him from repenting of his sins; he is unable to become a righteous man and is not even a shadow of the man that he would be were it not for the drugs.
44. There is no reason to believe that his consultant and responsible clinician is 'an expert on those claiming to be called of God … prophets and prophetesses are a blind spot for psychiatrists'.

Capacity to tithe

45. MS correctly summarises the key part of his consultant's opinion which is: 'My opinion is that his beliefs about the tithe are an extension of his delusions and stem directly from them.'
46. This, says MS, shows a lack of insight into his faith. What his consultant describes as holding beliefs with a delusional intensity is simply 'part of the zeal that is enjoined upon all Christians … And how does my wish to offer this tithe "stem directly" from my delusions?'

'Giving a ten percent tithe is an Old and New Testament principle that is practised in my church … We are commanded to do it! Yes, I am not a member of my church — in this world — nevertheless, I believe it is busybodyism of a gross and outrageous sort … to deny me the sacred privilege of giving to my church as I see fit, and in accordance with my church's understanding of tithing ….'

47. His consultant's assertion that his wish 'to give this tithe is some sort of get-rich-quick scheme, cries out for repudiation'. In the Old Testament, God promises that he will open the windows of heaven to those who pay an honest tithe and pour out a blessing that there is not room to receive (Malachi, 3:10). Although not animated by a desire for riches, the giving of this tithe

'will help to wonderfully hasten the day that I will no longer need benefits, and become a tax-paying member of society, a wonderful investment, so to speak, for the taxpayer. [My consultant] … questions the wisdom of my giving this tithe, whether I can afford to do so. I would ask, can I afford not to give this tithe? To manage without being blessed above measure by him? (see Malachi, 3:8-9)^[1]

48. God will not punish him for not giving the tithe if it is the state that prevents him from giving it.
49. In late January or early February 2005, he gave a tithe of his surplus property and capital to his church of £1600-1700. He was 'well' at the time. It was only on around 9 June that year that he stopped taking his prescribed medication, following which he was 'locked up' some 13 days later:

'I had been tithing since early 2004 when I discovered … the verse in which members of my church are commanded to start tithing in this way. Unfortunately, I cannot remember exactly what my thoughts were, but I was at least partly animated by the desire to get things right — and to not run with the herd. I did not endanger myself financially at all in attempting to give this surplus tithe (it was eventually returned to me by my church). It was just that — my surplus.'

Capacity to manage his property and affairs

50. Although Dr T had written that he had little idea about his current day-to-day financial situation, MS denied that he is vulnerable to exploitation. It was not appropriate to characterise his 'lending and sometimes giving money to people in some sort of financial trouble' in this way — 'I do this at all times, not just when "unwell"'. In the Gospel of Matthew, Christ commands: 'Give to him that asketh thee, and from him that would borrow of thee turn not thou away' (Matthew 5:42). Christ gave in this way and 'was a rich man before he began his ministry'.

Concluding remarks

51. MS finishes by saying:

'In conclusion, I fail to see the justification for my having less rights than a child, and my being deemed less capable than a child, at the very least when it comes to litigating, and giving a tithe of my inheritance.

I would like to thank the Court for this opportunity to present my case, and to ask if I might be similarly included in the future as it deliberates over me, should it be called upon to do so. I would also like to request that my case be heard again in the event of my remaining at all subject to the Court, and should there be significant change in the future. I apologise for this submission being handwritten; my computer is not in working order. My apologies also for my messy pen.'

§6 — LAW ON MENTAL CAPACITY AND GIFTS

52. The Court of Protection may make declarations as to whether a person has or lacks capacity to make a decision specified in the declaration, in this case a gift: Mental Capacity Act 2005, s15(1)(a)(b).
53. There is a presumption of capacity and everyone is assumed to have capacity to make the decision in question unless and until it is established that they lack capacity. Lack of capacity must be established on the balance of probabilities.
54. If a person lacks capacity to make a gift, the court may by order make the particular decision or decisions on the incapacitated person's behalf: MCA 2005, s16(2)(a), s18(1)(b).
55. The Mental Capacity Act 2005 — including, therefore, the capacity test set out in it — applies to proceedings …. in the Court of Protection, and this case is in the Court of Protection.
56. For the purposes of the Act, a person lacks capacity in relation to a matter 'if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.'
57. For these purposes, a person is unable to make a decision for themselves if s/he is unable:

• to understand the information relevant to the decision,

• to retain that information,

• to use or weigh that information as part of the process of making the decision, or

• to communicate their decision (whether by talking, using sign language or any other means).

58. A person is not to be regarded as unable to understand the information relevant to a decision if s/he is able to understand an explanation of it in a way that is appropriate to her/his circumstances (using simple language, visual aids or any other means).
59. The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision.
60. Furthermore, a person is not to be treated as lacking capacity to make the decision(s) in question merely because s/he makes an unwise decision or proposes to do so (sometimes called an "outcome approach"). However, whilst a person cannot be found to lack capacity simply because their proposed decision is unconventional, irrational or unwise, fairly obviously an unwise or irrational decision may raise significant doubts and so trigger an assessment of the person's capacity.
61. A person is not to be treated as lacking capacity to make the decision in question unless all practicable steps to help them to do so have been taken without success.
62. As can be seen from the above, being 'unable to decide' does not mean literally that. Demonstrating incapacity involves establishing that the individual's capacity to make the decision in question is in some way fundamentally compromised by the fact that the functioning of their mind or brain is impaired or disturbed. In other words, because of an impairment or disturbance of their mind or brain they are unable to understand, retain or weigh the information relevant to the decision, or are unable to communicate their decision. A link must be established.
63. Whether an individual has capacity may depend in part on the nature and complexity of the decisions to be made.

Re Beaney

64. The statutory capacity test set out in the 2005 Act applies to declarations and decisions made under that Act (see above). As the Code of Practice anticipates, in the majority of gift cases there will be little difference between it and the common law approach set out in Re Beaney 1 WLR 770, [1978] 2 All ER 595.
65. In Re Beaney, the court was concerned with how much information is relevant, i.e. the amount or scope of the information which the person concerned ('P') must be capable of understanding, retaining and weighing in order to have capacity to make the decision for themselves.
66. One party argued that it was enough if P understood first, that she was making a gift, secondly, that the subject-matter of the gift was the house, and, thirdly, that the person to whom she was giving it was her daughter V ('the narrow view'). The 'broad view' — which won out — was that it was also necessary for P to understand that she was giving away her only asset of value and was thus depriving her other two children of any real interest in her estate …'
67. The 2005 Act similarly tells us that 'the information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision': this is relevant information that needs to be understood, retained, used and weighed in order to have capacity to make a decision to gift.
68. In 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.
69. Thus, in Re Beaney, where P was giving her house and only main asset to one of three children at the end of her life instead of by Will, and the significance was to disinherit the other two children, the degree of understanding required was as high as that required for a will, and the donor had to understand the claims of all potential donees and the extent of the property to be disposed of.
70. Unless one understood that one would be entirely failing to grasp the significance of the transaction:

The degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect. In the case of a will the degree required is always high. In the case of a contract, a deed made for consideration or a gift inter vivos, whether by deed or otherwise, the degree required varies with the circumstances of the transaction. Thus, at one extreme, if the subject-matter and value of a gift are trivial in relation to the donor's other assets a low degree of understanding will suffice. But, at the other, if its effect is to dispose of the donor's only asset of value and thus for practical purposes to pre-empt the devolution of his estate under his will or on his intestacy, then the degree of understanding required is as high as that required for a will, and the donor must understand the claims of all potential donees and the extent of the property to be disposed of.

Martin Nourse QC sitting as a Deputy Judge of the High Court

Re Beaney [1978] 2 All ER 595 at 600

71. (Consistent with many common law cases, it can be seen that the court in Re Beaney used the word 'understand' to include, not merely the ability to comprehend relevant information, but also the ability to use and weigh it, i.e. in the common, everyday, sense that a person either does or does not understand what they are doing, the significance of their act.)
72. This kind of approach is consistent with the approach to capacity adopted in other areas by the courts, for example with regard to litigation capacity and medical treatment. Thus, a person may have capacity to bring or defend a small relatively trivial claim in court, where the nature of the dispute and the issues are simple to understand and weigh, but lack capacity to litigate in a case where the nature of the dispute or the issues are more significant or complex. Likewise they may have capacity to consent to a simple medical procedure but not something much more significant.

§7 — THE SPECIAL VISITOR'S REPORT

73. The court commissioned a report from one of its Special Visitors, consultant psychiatrist Dr T. Following an examination, Dr T reported that:

• MS's core belief system, which has a strong religious core, remains unchanged.

• He has been reluctant to engage the services of a solicitor at times because he said that no one else could speak for him.

• His manner was friendly and co-operative and he was forthcoming about his thoughts and feelings (SV Report, para. 38). His mood was euthymic.

• His speech 'was at times rambling (which he himself recognised) and he could wander off the area I was questioning him about and had to be redirected' (SV Report, para. 40).

• He clearly understood what a LPA comprised but was not sure that he would want to make one or that he would want to appoint his mother or sibling as his attorney (para. 55).

• In the past there has been concern about his financial vulnerability and he said that he had given a friend several hundred pounds.

• He was preoccupied with trying to explain his religious beliefs to Dr T and how he was forced to take drugs because his psychiatrists did not understand him (SV Report, para. 42).

• Everything that had gone wrong or was lacking in his life was due to the evil effects of medication (SV Report, para. 43). It clouded his relationship with God and prevented him from due penitence. He believed 'that he is a prophet who comes next in line to God, Jesus and the Holy Ghost' (SV Report, para. 45). He believed that prophets, such as Jesus and St Paul, had been failed by the legal system (SV Report, para. 52). He had experienced revelations, rather than auditory or visual hallucinations, for example in the past that he 'should walk from South Africa to Iraq which he set out to do barefoot' (SV Report, para. 47).

• He told Dr T that 'he wanted to be a member of the Mormon Church, but currently they would not baptise him so he was not a full member. The reasons for this he declined to give me saying that they were confidential between him and the church …' (SV Report, para. 56).

• As concerns the proposed tithe (SV Report, paras. 57-61):

57. He pointed out to me that tithing was not unique to the Mormons but had good biblical precedents. He was basing his wishes on this and not because he had received instructions from God to do so.

58. We spent some time discussing the principle of tithing and the difference between tithing income versus capital.

59. His view was that he should tithe 10% of the inheritance he had received (about £6,900.00).

60. He told me that he understood that this would make the capital he currently lived on decrease in value and speed up the time period before he would be on state benefits. He said that he supposed that eventually it would be the taxpayer who paid the tithe but that there was also the possibility that when that occurred (running out of capital) 'God would pour out great blessing on me', quoting from Malachi. (I looked this up later and it is to be found in Malachi chap3 verse 10). He did not believe this was definite but that it could happen.

61. He was aware that he had a financial interest in his mother's house but said that he would not want to do anything about this.

Special Visitor's opinion

74. In Dr T's opinion:

• MS has a mental disorder. The 'diagnosis is one of a schizoaffective disorder with also an obsessive compulsive disorder' (SV Report, page 6).

• He 'has 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.' (SV Report, page 6).

• He 'has no insight into his condition and feels he has been abused by psychiatrists who do not understand or accept his true calling.' (SV Report, page 6).

• He does not have the capacity to litigate (SV Report, page 7).

• He does not have the capacity to manage his property and affairs (SV Report, page 7).

• At present, he has 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.

Observations of Dr M

75. Dr M, who is Mr S's current consultant psychiatrist and responsible clinician, was invited to provide me with any observations which he wished to make concerning Dr T's findings and opinion. He saw Mr S on 27 September 2013, and has known him 'periodically' since 2007. He was not aware of Mr S's wish to pay a 10% tithe to his church until he received this request for his observations.
76. Dr M agreed with much of Dr T's report, including his description of Mr S's current presentation. He agreed that Mr S does not have the capacity to litigate or to manage his property and affairs. He did not explore Mr S's capacity to execute an LPA for property and affairs.

Difference of opinion as to capacity to tithe

77. The one significant area of disagreement concerned Mr S's request to make a gift of 10% of his property on the tithe principle. In particular, Dr T's opinion was that Mr S understands the principle of tithing and the implication for his own finances and that Mr S's desire to give this money to the church is part of his religious beliefs but not, in his opinion, part of his delusional belief system.
78. Dr M had discussed this issue with Mr S's care co-ordinator, BG. BG strongly felt that Mr S's request 'was significantly influenced by his religious delusions and that he was financially vulnerable and not really in a position to give a substantial portion of what little he has remaining in his bank account to the church.'
79. Dr M had discussed the issue with Mr S's previous consultant psychiatrist, Dr VS. Dr VS's opinion was unequivocally that Mr S 'is making this request in the context of his psychotic illness and in particular of his delusional ideas regarding religion. Dr VS felt that he did not have capacity to make that decision and that in his best interests this should be disallowed.'
80. When Dr M met with Mr S:

• MS was very well presented, his appearance was neat and well-kempt, he made good eye contact, and his manner was friendly and appropriate at all times.

• His speech was normal in form and his mood was subjectively and objectively euthymic.

• He 'had no ideas of harm to himself or others or of suicide … I did not form the opinion that he was experiencing perceptual abnormalities. His attention and memory seemed intact.'

• The content of his thought 'contained some of his long standing delusional religious ideas ... He expressed delusional religious ideas; to give a few examples he still believes that he has had revelations which place him as the "first outside the godhead". He feels that he is a messianic figure and that antipsychotic drugs are preventing him from attaining his true potential as a religious leader.'

• 'His insight is profoundly impaired, he strongly denies that he has any kind of mental illness although at the same time he also says that he clearly does not wish to become "well". In any case he is strongly opposed to taking antipsychotic medication and is only doing so under protest because the terms of his Community Treatment Order demand that he does so.'

• As to their discussion about the proposed gift:

Mr S told me in no uncertain terms that the reason that he wishes to make this tithe is because the Bible clearly says so in the Book of Malachi. According to his understanding of the Bible, every Christian must give 10% of any income to the church.

I asked him what would happen if he did or did not give this tithe to the church. He told me that he knew that if he gave the tithe then God will reward him very richly and that is the best way for him to come off benefits and in that way he feels it is a sound investment on behalf of the tax payer because if he is allowed to give this tithe then God will give him riches beyond his dreams. However, if he did not give this tithe, he felt that God will punish him severely.

We spent some time trying to understand what the basis for these beliefs was. Mr S told me repeatedly, that he knew that this was the truth and that this is a core part of his religious beliefs. I asked him whether all other Christians did this and he conceded that it was probably not universally practiced. However, he told me that he strongly believed that he should not be like other people and that part of his mission was to be different and more stringent or even extreme in his practice of the religious code. I went on to ask him whether it was particularly important for members of his church to give this tithe. He confirmed that all members of his church should be giving tithes although he also conceded that it is possible that "about 45-50% of them do not do this".

When I asked him whether he was a member of the church he admitted that he was not actually a member of the church because they have not allowed him to become a member. I then asked him whether it made sense for him to donate this money to a church which demands this of its members while, at the same time, not being a member of that church. He told me that he did not consider that a problem and went on to say that he gives 10% of every piece of income that he gets including, for instance, the money that his mother gives him periodically to help with paying his bills.

He told us that she usually gives him about £13 a month and that he gives £1.30 out of this as a tithe to the church.

We went on to discuss whether he was able to afford this. Looking at his spending over the past few years it seems that, of the inheritance that he got some years ago, he has spent about £7,000 every year. This means that the tithe that he is wishing to pay, which is almost £7,000, equates to about a year's worth of living expenses. He only has about six years worth of money if he continues to spend at this rate and I asked him whether he felt that this was a wise decision on his part at this time. He again clearly told me that he believed that God will directly reward him for giving this tithe and that he would be punished if he did not and therefore it was the right thing for him to do.

My impression is 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.

§8 — FINDINGS ON THE CAPACITY ISSUE

81. A person is not to be treated as lacking capacity to make the decision in question unless all practicable steps to help them to do so have been taken without success. In MS's case, he has been involved in the decision-making. Careful consideration has been given to his religious and cultural beliefs and values. Significant non-professional persons have been consulted (his mother).
82. It is common ground that he is able to retain relevant information and is able to communicate his preferred decision.
83. The different opinions concern his capacity to understand the relevant information, which includes information about the reasonably foreseeable consequences of deciding one way or another, and his capacity to weigh the relevant information.

Evidence of an impairment or disturbance of the mind or brain

84. According to medical opinion, MS has suffered from a schizo-affective disorder since approximately 1991, as a result of which he lacks capacity in some areas of his life, including capacity to tithe.
85. It is common-ground that he has strong and sincere religious beliefs and values and that what he sees as religious zeal others interpret as beliefs held with delusional intensity.
86. The 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.
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 (understanding and weighing the relevant information)

90. That leaves the second part of the statutory test.
91. Rebutting the presumption that he has capacity to tithe requires demonstrating on the balance of probabilities that because of this impairment or disturbance he cannot understand or weigh the information relevant to his decision to tithe.
92. What is the flaw in the decision-making process attributable to this impairment or disturbance of the mind or brain? What is the relevant information that he cannot understand or weigh because of this impairment or disturbance of the mind or brain?
93. On the one hand, Dr T says that Mr S understands the process of tithing and the implications for his own finances if he gives away the £6,900. His desire to make this gift to his 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.'
94. On the other hand, Dr M's opinion is that MS's 'beliefs about the tithe are an extension of his delusions and stem directly from them.'
95. I prefer Dr T's view on this issue.
96. Certain religions, including Christianity, Judaism and Islam, have tended to see it as a religious duty for individuals to give money or part of their produce to a religious body. In the past it was common to collect tithes (one tenth of a person's annual farm produce or earnings) for religious purposes, including the relief of the poor.
97. Dr M 'spent some time trying to understand what the basis for these beliefs was' and Mr S told him 'repeatedly, that he knew that this was the truth and that this is a core part of his religious beliefs.'
98. Mr S has referred the court to relevant passages in the Bible which support his interpretation that tithing is a religious obligation.
99. It is not significant 'whether he was able to afford this' — a tithe is set at 10% (income tax rather higher).
100. Historically, his 'generosity' is consistent with tithing. Giving is an individual act or obligation, not something required by the state and its laws through the collection of taxes and the distribution of benefits.
101. Nor is it necessarily significant whether all or most Christians now tithe or whether he differs from his church on one or more doctrinal matters.
102. Although M's belief that there is a Biblical injunction to pay tithes is supported by scripture and religious precedent, his belief that he is a prophet who is next to the Trinity in status is not. It is interpreted by him as true and by others as evidence of mental illness.
103. What is the precise connection between this 'delusional' religious belief and his proposed tithe? Dr M's opinion is that his 'beliefs about the tithe are an extension of his delusions and stem directly from them.'
104. Although on the evidence I have accepted that his belief that he is a prophet is a delusional belief that does not mean that all of his religious beliefs are delusional or compromised by the presence of mental illness.
105. The 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.
106. It may be significant that his tithing commenced not long before his admission to hospital in 2005 but the significance may be an interest in religious matters and a need for spiritual comfort which then developed a psychotic overlay.
107. Many of Mr S's religious beliefs are conventional religious beliefs, for example his belief that Jesus was the Son of God and that the Bible is a holy book. Other beliefs have a long tradition and are supported by scripture.
108. In what way therefore does his belief that it is necessary or appropriate to give a tithe stem directly from his delusion that he is a prophet or constitute an extension of it?
109. Belief A (I am a prophet) does not cause Belief B (it is a religious duty to give a tithe), nor is the second belief an extension of the first. Belief B is, however, a logical consequence of Belief C, that what is written in the Bible, including the injunction to tithe, represents God's word.
110. Furthermore, the belief that the Bible is the word of God is shared by millions of people and does not stem from a belief in prophethood.
111. The 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.
112. It 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.
113. It is relevant that his belief is a matter of faith.
114. In my opinion, on the balance of the evidence Dr T is correct when he says it cannot be demonstrated that Mr S's desire to give this money to the Mormon Church is part of his delusional belief system.
115. This, it seems to me, leaves two possible objections to MS's capacity, neither of which were properly articulated or developed by or on behalf of the deputy.
116. The first objection is that Ms S'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.
117. The evidence is ambiguous:

Dr T	He said that he supposed that eventually it would be the taxpayer who paid the tithe but that there was also the possibility that when that occurred (running out of capital) 'God would pour out great blessing on me', quoting from Malachi. (I looked this up later and it is to be found in Malachi chap3 verse 10). He did not believe this was definite but that it could happen.
Dr M	He told me that he knew that if he gave the tithe then God will reward him very richly and that is the best way for him to come off benefits and in that way he feels it is a sound investment on behalf of the tax payer because if he is allowed to give this tithe then god will give him riches beyond his dreams. However, if he did not give this tithe, he felt that God will punish him severely.
Letter to court	Although not animated by a desire for riches, the giving of this tithe 'will help to wonderfully hasten the day that I will no longer need benefits, and become a tax-paying member of society, a wonderful investment, so to speak, for the taxpayer. [My consultant] … questions the wisdom of my giving this tithe, whether I can afford to do so. I would ask, can I afford not to give this tithe? To manage without being blessed above measure by him? (see Malachi, 3:8-9).

118. This appears to be what the quoted passage in the Bible says and the burden of proof is on the person seeking to establish incapacity.
119. MS told Dr T that 'that he supposed that eventually it would be the taxpayer who paid the tithe' and that the alternative was simply a possibility, but he still wanted to give the tithe. This suggests that he believes a tithe is required of him even when he does not foresee or conjecture that in consequence it will benefit him or the state financially. In my opinion, the evidence is 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.
120. The other possible objection is that Mr S'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.
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.

§9 — BEST INTERESTS

123. I should add that even if I had found that Mr S fell just the other side of the capacity line I would have authorised the tithe on his behalf.
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.

§10 — CAPACITY TO LITIGATE

129. The issue is whether MS has capacity to conduct this litigation.
130. Contrary to the opinions of the psychiatrists in the case, I have taken the view that he does have capacity to litigate the proceedings before me. I have done so for the following reasons:

(a) Where the decision(s) to be made concern the conduct of litigation, there appears to be no substantive difference between the capacity test in the 2005 Act and the previous common law principles expounded in cases such as Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511. This is not surprising because the statutory test is built on common law foundations and the previous case law therefore continues to be highly relevant. (Masterman-Lister v Brutton & Co (No 1) has recently been endorsed by the Supreme Court in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18).

(b) Because tests of capacity are issue-specific, it is MS's capacity to conduct these particular proceedings that is the issue. The question is not something to be determined in the abstract.

(c) Medical opinion is only part of the evidence. Other relevant evidence may include evidence from other professionals, conduct observed by the court itself, the individual's correspondence, emails and so forth.

(d) A person may have capacity to bring or defend a small claim in court, where the nature of the dispute and the issues are simple to understand and weigh, but lack capacity to litigate in a case where the nature of the dispute or the issues are more complex.

(e) The substantive and procedural issues in this case are not complex and are well understood by MS.

(f) His belief that he is a prophet does not impinge on his capacity to argue and present his case with regard to the tithe and the other litigation issues. He 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.

(g) He is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings.

(h) Because MS has capacity to make the substantive decision for himself, there is no inherent contradiction in finding that he also has litigation capacity.

§11 — OTHER MATTERS

131. At present, I believe that the balance of the evidence does not yet support an order under rule 202 of the Court of Protection Rules 2007, placing the management of all of MS's property back under his own control.
132. However, I am conscious that the options have not yet been fully explored because the original application to the court related only to the tithe.
133. Dr T has given his opinion that MS has capacity to execute a Lasting Power of Attorney for property and affairs. The next step is, I would suggest, for him to 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.

§12 — CONCLUDING REMARKS

134. The local authority has been very mindful of MS's dignity, wishes and feelings and I should like to end by praising it for bringing this application on his behalf.

District Judge Eldergill

Note 1    8 “Will a mere mortal rob God? Yet you rob me. “But you ask, ‘How are we robbing you?’ “In tithes and offerings. 9 You are under a curse—your whole nation—because you are robbing me. 10 Bring the whole tithe into the storehouse, that there may be food in my house. Test me in this,” says the Lord Almighty, “and see if I will not throw open the floodgates of heaven and pour out so much blessing that there will not be room enough to store it.    [Back]