https://www.bailii.org/ew/cases/EWCOP/2022/1.html
This section 21A application made by the London Borough of X regarding ‘MR’ was heard by District Judge Eldergill on 01 December 2021 in the Court of Protection. The sole issue for determination was whether it was in MR’s best interests to remain at his current care home ‘CC’ or be moved to a Jewish care home such as ‘T’ or ‘S’. The applicant, independent expert, further professionals, the Official Solicitor and second respondent family member ‘PD’, opposed the move. The third respondent, family member ‘AB’, supported it.
MR was an elderly male incapacitated by dementia and deprived of his liberty under a standard DoLS authorisation.
In April 2020, MR had been discharged from hospital to CC without exploration of a Jewish care home placement. At the time of the instant proceedings MR’s life expectancy was determined to be between three and twenty seven months. Eldergill J had previously directed the application be expedited and final hearings held without significant delays. Following the hearings, it was determined that enabling MR to visit care home ‘T’ may have revealed the extent to which his condition permitted him to be aware of and to benefit from his surroundings, thereby resolving the conflicting views on the matter. However, due to the length of time required to arrange such a visit, this was not achievable. MR’s Rabbi, ‘Rabbi S’ visited him at CC subsequently observing that connection with his Jewish heritage and practices on offer at a Jewish care home would kindle something “deep down” in MR and that such stimuli “would be good because it would ignite the memories for him and would be culturally something very important to him.” The parties were then permitted to make supplemental submissions in light of the full record of that visit.
Eldergill J noted there were no disputes as to the relevant legal principles and that this was “a classic best interests case involving balancing many different relevant considerations.” However, he did outline the particular relevance of the European Convention on Human Rights, specifically:
Art.2, Art.5, Art.8 – the qualified right to respect for privacy and a family life – and Art. 9 – the right to freedom of religion including to manifest alone or with others one’s religion or belief (for which the decision in Re IH [2017] EWCOP 9, concerning the religious observances by incapacitated people, had relevance).
Eldergill J referred to s.4 of the MCA 2005 and the guidance provided by the case law in ITW v Z [2009] EWHC 2525 (Fam), whilst noting that “The law requires objective analysis of a subject not an object. The incapacitated person is the subject… It is their welfare in the context of their wishes, feelings, beliefs and values that is important. This is the principle of beneficence… the judge no less than the public authorities, is MR’s servant, not his master… [as] emphasised by Lady Hale: ‘The purpose of the best interests test is to consider matters from the patient’s point of view.’ “
Eldergill J accepted evidence from an expert physician and special visitor and from a GP that moving MR would involve a high risk of mortality and impact to wellbeing requiring consideration of “how important living in a Jewish care home is to MR; the beliefs and values that would be likely to influence his decision if he had capacity; and the other factors that he would be likely to consider if he were able to do so. 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?”
Regarding the Court’s understanding of how important the Jewish religious and community life were to him, how important they were to him when he had capacity and what he would be likely to want now if he still had capacity, Rabbi S noted exceptions were made from adherence to Jewish law and practices for those lacking capacity. Eldergill J noted this was not determinative as to residence and that the pertinent question concerned what MR’s beliefs and wishes would be in this situation if he had capacity now – that is, was MR religious, and was his practice of Judaism merely minimal? In answer to this, largely based upon insights into past actions and choices, including that MR’s will expressed a wish to be buried in accordance with the Jewish faith and that he had bequeathed his estate to three Jewish charities – including Care Home ‘T’, Eldergill J noted “that MR was a devoted and committed member of his synagogue and Jewish community over many years, and that he placed a high value on this.” Additionally, that whilst the current clinical and experiential evidence suggested MR’s recognition of what was once important to him, including his religion, had deteriorated significantly, this did not mean its value to him had no significance or emotional importance capable of contributing to his wellbeing and maximising his pleasure from what time remained to him.
The balancing process pointed to MR’s best interests being in a move to T Care home and that it was likely he would “benefit from the familiar religious and communal activities” there and that “the likely benefits outweigh the likely risks.“ In summary: … “I find that he intended to live in a Jewish care home should he no longer be able to live at home. His wishes, beliefs and values when he had capacity — who he was, how he chose to live his life, what he valued — align with a move to a Jewish care home. Because those wishes, beliefs and values were life-long, I find that it is likely that, notwithstanding the risks, he would now wish to move to a Jewish care home if he still had capacity, so as to live out what little time remains to him within such a community.”