Best interests and moving care homes

A Court of Protection judge recently decided that a move to a Jewish care home was in the best interests of an 86-year-old man, despite the council and the Official Solicitor being against the switch. Lauren Gardner examines the ruling.

In London Borough of X v MR & Ors (Rev1) [2022] EWCOP 1 (13 January 2022) MR had advanced dementia and needed assistance with all daily living activities. He had resided at a nursing home (“CC nursing home”) since April 2020 after being discharged from hospital during the first lockdown. He was subject to a standard authorisation. The application before the court was a section 21A application, and the issue was whether it was in MR’s best interests to remain at CC nursing home or move to a Jewish care home. MR lacked capacity to decide where to reside and what care and treatment to receive.

The Applicant was the Local Authority, and the Official Solicitor acted on MR’s behalf. Both submitted that it was in MR’s best interests to remain where he was. The Second Respondent, MR’s nephew (“PD”), also believed that it was in MR’s best interests to remain at CC nursing home. The Third Respondent, the nephew of MR’s late wife (“AB”), believed that it was in MR’s best interests to be transferred to a Jewish care home.

The medical evidence in the case was that MR’s life was sadly drawing to a close, and a significant consideration in the case was therefore not just where he was to live but also where he would die. District Judge Eldergill noted that the legal considerations in this case, which included Articles 2, 5, 8 and 9 ECHR as well as the Mental Capacity Act 2005 and Codes of Practice, were not in dispute, and that this was a classic best interests case involving balancing many different relevant considerations. DJ Eldergill made an analysis of competing considerations as follows:

In favour of CC nursing home:

The judge noted the potential risks to MR’s health if he was to move to a new care home, including his impaired eyesight, reduced mobility, and other factors. The medical evidence in the case was that a move would mean MR was at a higher risk of mortality, particularly within the first months of relocating. DJ Eldergill noted that in this context, the court must consider how important a move to a Jewish care home was for MR: “Do the benefits of a transfer — which include giving expression to past and/or present wishes, beliefs and values — outweigh this higher risk of mortality and the serious risk of a deterioration in his health?”

DJ Eldergill did not agree with AB that the standard of care at CC nursing home was poor, and accepted that MR was generally content and happy at CC nursing home. In this way, there was a risk of moving because MR had familiarity with his surroundings and appeared settled at CC nursing home.

In favour of a move to a Jewish care home:

DJ Eldergill noted that MR’s religious beliefs had not been considered when he was discharged from hospital to CC nursing home. Although CC nursing home had taken some steps to accommodate MR’s religious beliefs, there appeared to have been no attempts to facilitate his visits to synagogue or celebrate Jewish holidays. As a result, the judge found that the Local Authority and CC nursing home had taken insufficient steps to deliver a care plan which provided for MR’s religious and cultural needs.

In terms of the question as to how important Jewish religious and community life was to MR, PD told the court that because MR lacked capacity he was not required to undertake or observe religious obligations. The judge duly noted that this did not mean that following religious and cultural practices was irrelevant as part of the best interest considerations. DJ Eldergill found against PD’s assertion that MR was not particularly religious, and rather was satisfied that MR was a devoted member of his synagogue and Jewish community.

The medical evidence in the case was that MR was significantly limited in his understanding of religious and cultural practices. This was confirmed by a Rabbi visit in December, which formed part of the evidence in the case. However, it was important that this visit seemed to have satisfied or pleased MR, even though he might not have understood why at an intellectual level.

After considering these balancing issues, DJ Eldergill held that MR should move to a Jewish care home. The judge noted that, notwithstanding the risks, MR’s wishes, beliefs and values when he had capacity would align with this. In this way, MR “will receive his care during his final days in a care environment that he intended for himself culturally, religiously and socially; and in a manner that more fully accords with his values and the way he chose to live out his life”.

Lauren Gardner is a future pupil barrister at Spire Barristers.