In a guest post, Elijah Z Granet discusses yet another difficult case from the Court of Protection: the impact of childhood indoctrination on adult mental capacity.
Cults and new religious movements can have destructive effects on their members, particularly those whose childhood was passed in extreme religious environments. In the recent case of Re EOA [2021] EWCOP 20, the Court of Protection (Williams J) was forced to consider whether or not childhood religious indoctrination can be so extreme that it results in the deprivation of an adult’s liberty.
The facts
“EOA” is a 19-year-old man who, until his removal by the authorities age of 14, was subjected by his parents to “extreme religious and anti-social indoctrination” [1], which included elements of “radicalisation, coercion and control, “undue influence and duress” [7]. EOA was deprived of any formal education other than exclusively Bible studies, [34] and was generally subject to indoctrination into a lifestyle so extreme as to be unacceptable, even with “due allowance for the very wide margins acceptable in a modern liberal society” [48]. The specific group or sect (if any) to which the parents were affiliated is unknown, although it is indicative that the Court received evidence from an expert in cults and new religious movements [37].
EOA also has, separately from this history of maltreatment, an indeterminate psychological and neurological condition, which Williams J found (after hearing the various medical evidence) to be autism spectrum disorder (ASD) [48]. Some combination of these factors (described by one of the expert witnesses quoted as “a blending of religious ideas and psychotic thinking’) [37] led EOA to be unmovingly attached to fixed, paranoid preconceptions of the world which dominated his decision-making. One effect of this worldview is that EOA has generally refused to engage with the various services involved in his care [62]. In light of this, the Royal Borough of Greenwich sought, after discussion with the Official Solicitor, declarations of EOA’s lack of capacity in several areas and the authorisation for EOA’s treatment with local authority services in accordance with a care plan which included the deprivation of EOA’s liberty (and requiring a consequent order). [8-10]
The law
The Mental Capacity Act 2005 (MCA) provides the framework for declarations of incapacity and, where necessary, deprivation of liberty, for people who are found to lack capacity in certain areas. MCA s.2(1) states that:
“For the purposes of this 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.”
The judgment
The interaction between EOA’s ASD and his unusual and apparently total religious indoctrination (the term preferred by Williams J) meant that this case was “highly unusual” and extremely complex [55]. The judge found that EOA was displaying a rigidity of thinking so severe that he was incapable of even processing relevant and important information necessary to make decisions [48]. Yet, merely being unable to make a decision is not sufficient to engage MCA, s 2(1); there must be a causal relationship between this inability and an “impairment” or “disturbance” in the mind or brain.
In EOA’s case, it was, as acknowledged by one of the expert witnesses, difficult to identify if the autism or religious indoctrination had caused the paralysing rigidity of thinking; the two may have even reinforced one another [36]. For the purposes of disposing of the issues in the case, Williams J was satisfied that there was enough evidence of a causal link sufficient with autism that it was not necessary to try to disentangle the two factors, and made the relevant orders [63–70]. However, his Lordship added, obiter:
“It is well established that emotional abuse and neglect can have both physiological/neurological consequences in terms of brain development and psychological consequences. The absence of any specific diagnosis in relation to EOA of the effects of his neglectful and abusive childhood does not mean that they may not still be present and playing a part in his current functioning. In theory at least, it seems to me possible that even if it were not possible to fit those consequences into any known diagnostic category that they would be capable of having caused an impairment of or a disturbance in the functioning of the mind or brain which would potentially bring them within the ambit of section 2(1) of the Mental Capacity Act. Of course, EOA’s case is as I have said far beyond any broad societal norms and within the spectrum where it can properly be characterised as indoctrination. Thus, even where the causes of incapacity caused by autism resolved that might still leave issues to be determined as to whether the consequences of his abusive indoctrination had consequences in terms of his capacity” [48].
Comment
There are three interesting issues raised by this unfortunate case.
The first is the possibility that religious indoctrination can be so severe as to constitute an “impairment” or “disturbance” of the mind or brain for the purposes of MCA, s 2(1). Williams J is undoubtedly correct to note the severe psychological harm which can occur to children who are raised in cults or extremist sects; the trauma and abuse meted out by fanatical parents and the leaders of fringe religious groups is horrifying and real and is obviously capable of causing psychiatric harm resulting in a recognised disorder or incapacity. The question, however, as to whether a rigid worldview brought about by indoctrination can per se constitute an “impairment” sufficient to bring about, inter alia, deprivation of liberty is a difficult one.
The MCA, as a statutory mechanism for depriving people of various fundamental liberties, must be interpreted very cautiously to ensure that this power is used only where proportionate and necessary. If the consequences of religious indoctrination do not fit “into any known diagnostic category”, then it is unclear how they could be accurately be called an “impairment” or “disturbance” of the mind or brain unless they were so manifest and severe as to render a specific diagnosis otiose. Even then, it is a difficult problem for the law to sort out when childhood religious indoctrination has deprived an adult of capacity and when it has merely resulted in an adult who is exercising the right to adhere, even to a harmful extent, to an obsessive and rigid religious worldview. The ultimate decision, in any case, must depend on the precise facts and content of religious indoctrination.
This leads to the second point: the law’s development depends on knowing the facts of cases where religious indoctrination was so severe as to cross the MCA threshold. In the present case, very little is known about what sort of religious beliefs and worldview were imparted on EOA, or by whom (ie, were the parents involved isolated fanatics of part of a wider cult). Of course, it is unquestionably correct that the first interest of the Court of Protection is to safeguard the dignity and privacy of those people who fall under its jurisdiction. However, it is respectfully submitted that, as a general principle, it is entirely possible to provide the public with details of the content of harmful religious indoctrination and (where applicable) the affiliated group or sect involved without compromising in any way the best interests of the people concerned. Except in the cases of exceedingly tiny sects (which consist of perhaps a single household), it is generally unlikely that the naming of a particular religious group would cause even the most marginal risk of compromising the identity of a single former adherent. Similarly, relating the content of specific harmful religious beliefs imparted by abusive parents could not conceivably be used to identify the person exposed to those beliefs.
The public interest in this information is twofold. First, the public has a strong interest in being aware of the presence and activities of socially harmful cults in their midst; these dangerous organisations represent a threat to the public order and safety of their neighbours. If a group has propagated a religious worldview so terrible that it results in an adult being incapacitate, this is plainly a matter of public concern. Second, the law relating to harmful religious indoctrination is, inevitably, developed mostly in proceedings in the Family Division and the Court of Protection. For there to be a proper dialogue between scholars, practitioners and the judiciary on the law in this area, where cases turn very precisely on particular facts, it is important that details about the religious harm involved be provided wherever doing so does not compromise the privacy of those involved. If necessary, it would be far preferable, for example, to withhold information relating to the particular local authority involved (which is of little precedential value) in exchange for including information about the religious harm.
Finally, this case highlights the difficulties the law faces where ASD and religion collide, as courts and local authorities have to try to separate out behaviour caused by radicalisation and by ASD and determine the appropriate course of treatment (de-radicalisation or ASD therapy). For example, in this case, the Court encountered difficulties in trying to understand if EOA was rejecting certain forms of social interaction because he disliked meeting non-cultic family members because it involved unpleasant large group interactions (ordinary ASD behaviour) or because he was refusing to engage with those who might challenge his beliefs (the dangerous behaviour of a fanatic) [50]. There is a real risk, as counsel for the Official Solicitor (acting on behalf of EOA) noted, that such people are indefinitely deprived of capacity because of the difficulty in treating this confluence of circumstances [16]; the existing programmes provided by various local authorities for de-radicalisation and ASD treatment are probably equally unprepared to address a mix of the two circumstances.
Williams J was thus right to call for a “bespoke approach” in this case [55], and future judges and responsible authorities should similarly be prepared to create an individualised response to serve the unique and pressing needs of vulnerable autistic individuals who have suffered extremist religious abuse.
Elijah Z Granet
Cite this article as: Elijah Z Granet, “When can religious indoctrination deprive an adult of capacity? EOA” in Law & Religion UK, 23 March 2021, https://lawandreligionuk.com/2021/03/23/when-can-religious-indoctrination-deprive-an-adult-of-capacity-eoa/