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Court of Protection approves move to Jewish care home in best interests of 86-year-old despite council, Official Solicitor being against

An elderly man who may not have long to live can move from a general nursing home into a Jewish one, the Court of Protection has ruled.

The case of London Borough of X v MR & Ors (Rev1) [2022] EWCOP 1 was brought before District Judge Eldergill by an unnamed London borough using the Mental Capacity Act 2005.

The section 21A application concerned 86-year-old MR and his nephews PD and AB, who want him removed to the Jewish care home, whereas the council argued the move could in itself adversely affect MR’s welfare and he should remain where he was.

MR was sent to the nursing home in April 2020, when he was discharged from hospital. He is deprived of his liberty under a standard authorisation issued by the local authority.

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The judge said the Official Solicitor had submitted on MR’s behalf that in his best interests to remain where he was, “but the Official Solicitor thinks the decision is very finely balanced, a view with which I agree”.

A doctor advised the court that MR’s life expectancy was between 2.3 and 4.3 years.

Eldergill DJ summarised the arguments in favour of MR remaining where he was as  being “one of the two major objections to a move is the risk to MR’s life, and to his physical and mental health, if he is moved to another care home.

“Whilst I must have careful regard for his Article 9 religious rights, I must also have regard for his Article 2 right to respect for his life.”

The judge said: “On the balance of the evidence, I find that if MR is transferred to a Jewish care home there is a high risk of adverse events including a higher risk of mortality, particularly within the first few months of relocation.”

This risk needed to be balance against the benefits to MR - an observant Jew - of being in a Jewish environment with which he was familiar.

The judge said there was no suggestion that the care MR received in the nursing home was deficient or that he was unhappy.

He said: “The second major disadvantage of a move is that MR is settled at [the] nursing home. Whilst he may benefit from the familiarity of some of the religious and cultural aspects of community life at a Jewish care home, he will lose, and is likely to be unsettled by, the loss of a sense of familiarity with his daily carers and the environment and routines of his current nursing home.”

Turing to factors in favour of a move to a Jewish care home, the judge said that an at earlier hearing “the local authority and the care home took insufficient steps to arrange and deliver a care plan which provided sufficiently for MR’s religious and cultural needs”.

He noted MR earlier in his life had been a regular attender at religious services and festivals and heard evidence from a rabbi that MR had been honoured by his synagogue.

Eldergill DJ concluded: “Having undertaken this balancing exercise as best I can, I have concluded that it is in MR’s best interests to move to [the Jewish] care home as soon as practicable.

“In my opinion, it is likely that he will benefit from the familiar religious and communal activities…although he would be unable to put into words why it pleases him.

“This gives him the best opportunity to enjoy or gain satisfaction from what life is left to him and the likely benefits outweigh the likely risks.”

Mark Smulian

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