The Court of Protection’s decision in relation to a man allegedly suffering from a delusion that he was the Messiah * and his desire to give 10% of his income to the Church by way of tithe.
* (I say allegedly, because part of the case involved the man trying to prove to the Court that he was not delusional but right. No spoilers, but I think that you probably would have read in the papers by now “Judge rules that man is New Jesus” if that’s the way this had ended up)
Re P (Capacity to Tithe Inheritance) 2014
The man, MS, had received an inheritance, just under £70,000 and wished to give 10% of it to the Church of Latter Day Saints (you may, or may not, know that the centrepiece of their faith is that the Bible is not just an Old Testament and New Testament, but a third volume, the Book of Mormon, and that Jesus came to America after the crucifixion and resurrection)
His family were, given his expressed belief that he was the Messiah, unsure that it was a properly informed decision to give away nearly £7,000 to the Church.
The Local Authority, given MS’s mental health, were acting as his deputy in relation to financial affairs, and they made an application to the Court of Protection for a declaration as to what they should do.
MS in turn sought a declaration that he had capacity to determine his own financial affairs.
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.
12In 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’.
13In 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).
14Mr 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).
15According 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’.
16 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’.
As a result of the inheritance, MS no longer received state benefits, his care needs and other expenses would be met from his capital until that runs out, when he would go back on benefits. If he were to give the tithe donation, the capital would run out 56 weeks earlier than if he were not to.
MS presented a document to the Court, this being an extract
42 ‘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.’
The consultant considered that MS’s views about the tithe and his desire to give the tithe flowed from his religious delusions and mania.
MS argued otherwise
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 ….’
Although the practice of titheing is relatively unusual, even amongst Christians, it is certainly something that is done by people of faith (even those who don’t claim that only God, Jesus and the Holy Ghost are more holy than them)
The capacity test for the giving of a gift is set out in a case called Beaney
70. 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  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.)
There ended up being a division between the medical professionals involved in the case, on an issue which went to the nub of it.
Was MS’s desire to tithe one that flowed directly out of his religious delusion that he was the Messiah, or were they part of his general religious beliefs and uninfluenced by the delusional aspects?
If the latter, then he was showing that he understood titheing, understood that he was disposing of some of his capital, understood that once it was gone it was gone, that it would lead him to run out of money sooner. In short, he had capacity.
If the former, and he was titheing because of a delusional belief * then he did not have capacity
(* I hesitate here, because there will be a mixture of religious people and atheists reading this. I know exactly what the atheists are thinking at this point, but the Court does have to respect a person’s right to a religious viewpoint and to express their faith)
84According 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.
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’.
[Spoiler over. The Judge does actually make a finding that on the balance of probabilities, MS is not the Messiah, it is just by inference rather than explicit]
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.
[That’s pretty explicit though]
So, there is an impairment of the functioning of the mind or brain, meeting the first part of the test for someone lacking capacity. The second test is whether because of that, the person cannot understand or weigh the relevant information. [Let’s not forget that the starting point under the Mental Capacity Act 2005 is that a person DOES have capacity to make decisions]
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.’
Looking at this in more detail
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.
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.
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.
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.
Interestingly, the Judge goes on to say that even if he had found that MS lacked capacity, he would still have said that allowing him to tithe would have been in his best interests.
Those portions of the judgment, although they are not part of the decision itself, touch on very important issues of autonomy and respect.
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.
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.
The Court ruled that MS had litigation capacity to conduct his own case in THESE proceedings. They did not, however, rule that he should resume control of all of his financial affairs (although the suggestion was that he should get some legal advice about this aspect and preparing a Lasting Power of Attorney)