Analysis
This was an application by a local authority property and affairs deputy seeking a direction whether to authorise a gift MS wished to make. MS was a member of the Church of Latter Day Saints (the church) and wished to donate £6,832 to the church as a tithe. This sum represented 10% of a recent inheritance. RS was MS’s mother and strongly opposed to the donation. MS made his own application seeking declarations that he had capacity to litigate, capacity to make a tithe, capacity to manage his own property and affairs and capacity to execute a LPA for property and affairs.
MS was 40 years old. In addition to the recent inheritance of £68,773, MS’s significant assets were a 26% share of his family home. MS’s past diagnoses included bipolar affective disorder, schizophrenia and schizoaffective disorder. The Court of Protection made an extended general order in 2007. On 27 April 2011 an order of Senior Judge Lush appointed the county council as MS’s deputy.
In addition to his Mormon faith, MS claimed that he was a prophet and was concerned that his clinicians did not understand his religious beliefs. MS had previously given a tithe of surplus property and capital amounting to £1,600 to £1,700 to the church in February 2005.
MS’s consultant, Dr M, was of the opinion that his belief about the tithe was an extension of MS’s delusions. The special visitor, Dr T, a consultant psychiatrist, gave evidence that MS still suffered from a mental disorder. In his opinion, the diagnosis was one of a schizoaffective disorder with also an obsessive compulsive disorder. MS has no insight into his condition and felt psychiatrists who did not understand or accept his true calling had abused him. In Dr T’s opinion, MS did not have the capacity to litigate or to manage his property and affairs. However, in Dr T’s opinion, he did have the capacity to execute an LPA for property and affairs. He also considered that MS had capacity to make a 10% gift. This was on the basis that MS understood the process of tithing and also the implications for his own finances. MS’s desire to give this money to the church was part of his religious beliefs but not part of his delusional belief system. Dr T could find no evidence that his wish to do this was part of any ‘revelation’, command or direct instruction from God.
Held:
- 1) MS had capacity to make the gift to the church. There was little difference between the MCA 2005 test for capacity and the common law test in Re Beaney (Deceased) [1978] 1 WLR 770. Consistent with many common law cases, Re Beaney used the word ‘understand’ to include the ability to use and weigh information. MS had an impairment of, or a disturbance in the functioning of, the mind or brain. Although MS’s belief that he was a prophet was a delusional belief, that did not mean all his religious beliefs were delusional. MS’s desire to tithe could not be shown to be part of his delusional belief system. Although there was some evidence MS hoped for a material reward for tithing, this was not sufficient to displace the presumption of capacity.
- 2) Even had MS lacked capacity, the tithe would have been in MS’s best interests and the court would have authorised the tithe on his behalf. Many people who experience mental illness identify themselves as religious and use religious activities or beliefs to cope, so one must take great care before deciding that it is in their best interests to interfere with these beliefs. 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. This was consistent with the approach taken to liberty of conscience and religious belief under the ECHR.
- 3) MS had capacity to litigate. The MCA 2005 test was consistent for these purposes with the common law test in Masterman-Lister v Brutton & Co (No 1) [2002] WTLR 259, as endorsed by the Supreme Court in Dunhill v Burgin [2014] UKSC 18. The substantive and procedural issues in this case were not complex and were well understood by MS. MS’s belief that he is a prophet did not impinge on his capacity to argue and present his case with regard to the tithe and the other litigation issues. He was 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 for which his consent or decision was likely to be necessary in the course of the proceedings. Given that MS has capacity to make the substantive decision for himself, there was no inherent contradiction in finding that he also has litigation capacity.
- 4) The evidence did not support making an order under r202 of the Court of Protection Rules placing the management of MS’s property back under his own control. MS should consider the advantages and disadvantages of making an LPA for property and affairs and the deputy should authorise the reasonable costs of obtaining legal advice in order for MS to do so.
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