We have been working with care homes to update their contracts and advise on the risks of charging the resident a regular “top-up” or additional fee where a resident is funded through NHS CHC
The Mental Capacity Act 2005 (the MCA) came into force on 1 October 2007 and is complemented by some 300 pages of guidance in the form of a Code of Practice. A cardinal principle of the MCA is that everyone is assumed to have mental capacity unless it is shown they lack capacity to make a particular decision, on a particular issue, at a particular time, as a result of a disturbance of the mind or brain. An unwise decision is to be differentiated from a lack of capacity.
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...
If a person lacks capacity to make a particular decision, then a decision must be made in their best interests. The MCA and Code of Practice give guidance on how to reach such decisions.
In an increasingly pluralistic society, people’s world and religious views are becoming more diverse. How do these factors interact with the MCA in a society where many in decision-making roles (local authorities, medical practitioners and the judiciary) may hold no religious world view, or have little or no understanding of the religion and culture in question? We are beginning to see some cases on this issue.
Common faith is not a trump card
In Re BM  EWCOP B20, the Court of Protection decided that a church minister was not appropriate to be financial deputy and look after the finances of a man (BM) who could no longer do so for himself. BM had a ‘very deep faith’ and this was one of the most important aspects of his life. Indeed, the church minister had led services in BM’s house. The court instead appointed his niece, who lived some distance away. In this case, the niece had some experience in financial management and the minister had acted, in some respects, as to question her ability to put BM’s interests first. No mention is made as to whether the niece shared BM’s religious views and/or would be able to help BM continue in these – especially from a distance. The decision hinged on the need for BM’s best interests to be met, which the judge considered the minister could not do. A common faith will not, therefore, ‘trump all’ so far as the court is concerned.
‘Tithing’ is not an incapacitous decision
In A County Council v MS and RS  EWHC B14 (COP), a 40-year-old man wanted to give one-tenth (known as a ‘tithe’) of an inheritance to his church. MS had a diagnosis of schizophrenia and was described as preoccupied with religious beliefs. He believed he had spiritual gifts that made him ‘as gifted as God’, and was described as delusional. MS’ financial resources also included regular state benefits, from which he made frequent donations to his church. Was the desire to tithe the inheritance, in particular, just unwise, or was it an incapacitous decision? The judge decided that tithing, although not perhaps widely practiced, was an orthodox belief and not part of a delusional belief system.
The judge commented: ‘I accept that sometimes it can be difficult to distinguish between a religious delusion and a particular religious belief or practise. There is a risk of pathologising 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’.1
The judge added: ‘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…2 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...3 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.’4
Respecting religious beliefs
This view was endorsed in a recent case involving a Jehovah’s Witness and the need for a blood transfusion (Nottinghamshire Healthcare NHS Trust v RC  EWHC 1317 (COP)). RC suffered from a serious personality disorder, a symptom of which was that he engaged in significant self-harm on a number of occasions, resulting in profuse bleeding. RC had made a living will indicating he did not want blood transfusions.
A doctor advised that: ‘[RC’s] ability to weigh the risks of refusing blood against his religious beliefs is difficult to describe because his religious beliefs effectively create in his mind (and others) an absolute prohibition on blood products and so there is relatively little “weighing” when it comes to this decision.’5
The judge commented: ‘This aspect of the test of capacity [weighing the ‘pros’ and ‘cons’ of deciding one way or another] must be applied very cautiously and carefully when religious beliefs are in play… it would be an extreme example of the application of the law of unintended consequences were an iron tenet of an accepted religion to give rise to questions of capacity under the MCA. I therefore place little emphasis on the fact that a tenet of RC’s religious faith prevents him from weighing the advantages of a blood transfusion…’6
These cases show the courts grappling with issues of faith in a sensitive manner. The cases that have been decided have perhaps been on fairly uncontroversial aspects. Greater difficulties may arise when a person’s capacity is in question and the court has to decide whether to authorise a pregnancy termination or divorce, where the individual had previously expressed strong ‘traditional’ views on these matters. Situations involving such sensitive matters may not reach the courts and be the subject of detailed consideration. The generally held view of the public or a large number of that faith may have changed over the years – but not the view of the person in question. What will be in their best interests?
To misquote Tony Blair’s former press secretary Alistair Campbell, ‘we do still do God’, but we may need to remain vigilant.
1. At paragraph 87
2. At paragraph 101
3. At paragraph 105
4. At paragraph 125
5. At paragraph 33
6. At paragraphs 34 and 35
Originally published on STEP website.
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