High Court backs move of 89-year-old man with Alzheimer’s from care home in UK to Jamaica

It is in the best interests of an 89-year-old man (XX) currently in a care home in the UK to travel to Jamaica for his last years, despite him lacking the mental capacity to make the decision himself, a High Court judge has ruled.

In XX v West Northamptonshire Council & Anor [2022] EWCOP 40, Mrs Justice Lieven DBE said: “I accept this is not an easy decision and there are factors on both sides. I note the delay that has happened means that factors in favour of XX moving have somewhat diminished and his ability to gain from being in Jamaica has also diminished. However, I have reached the conclusion that it is still in his best interests to move to Jamaica.”

The background to the proceedings was that XX has been diagnosed with Alzheimer’s disease and has spent the last two years living in a care home.

Prior to his dementia taking hold, XX joined the Jamaican Returning Residents Association, a group for Jamaicans who worked abroad and have returned in their later years. He also paid tax on a property he inherited, which was relied on as evidence of his intention to return to Jamaica.

He first came to the UK in the 1960s and still has extended family in Jamaica, including two sisters and a large number of nieces and nephews. XX’s wife died in 2016, leaving him with two-step sons, a step-granddaughter, and a step-daughter-in-law in the UK.

An application was brought under s.21A of the Mental Capacity Act 2005.

The family in Jamaica set out a detailed care package that included both family care and professional care as and when needed.

They also put together a package to get XX to Jamaica which would cost in the region of £100k, a cost which the judge found XX could incur and still have a “pot of capital remaining for paid care in Jamaica”.

In the proceedings, the local authority took “a surprisingly firm stance” that he should stay at his current care home, according to the judge. The council emphasised that there were potential care risks in the plan in Jamaica in terms of nighttime needs and the lack of training and skilled carers.

Additionally, the council claimed that if XX paid for travel to Jamaica, there might then be insufficient funds for professional care. The council also referred to risk on the flight and the fact that XX did have regular visits in the care home from his UK family and a past carer of his.

AA’s representative said there was clear evidence that in 2016 XX expressed a wish to travel to Jamaica and that this amounted to clear evidence of wishes before he lost capacity.

He also pointed to the benefits of the cultural and emotional needs of returning to be surrounded by loving family, setting out that in Jamaica, XX would be surrounded not just by family but by music, culture and religion that is plainly important to him.

Ultimately, the judge concluded that moving to Jamaica was in XX’s best interests, saying the reasons she had come to this conclusion were firstly around XX’s wishes and feelings. “The evidence that indicates that is the joining of the Returning Residence Association, payment of tax and conversations with family members. I have little doubt that if he was capable of being asked now, he would say he wanted to live in Jamaica."

The judge said she accepted that there were risks but two doctors had felt that these could be mitigated.

She accepted that he receives appropriate care at his current care home and he may have limited recognition of his family. “However, in my view he may appear more confused and unwilling to talk to strangers than he is with his family. He talks regularly to them on the phone and perhaps does recognise and understand connection with them and enjoys those conversations.”

The judge rejected a suggestion that family members could come to England from Jamaica for holidays and this would meet the benefits of him moving to Jamaica.

Mrs Justice Lieven later added: “There are also in my view intangible benefits that lie in the nature of human feeling and experience for XX to spend those last years with a loving family around him rather than being cared for by strangers in a care home.

“It is a benefit hard to explain or quantify. However good staff in a care home are, they are not the same as being cared for by a loving family for whom the individual is special and has particular connections. What most people would want is to be with their family around them for their later days.

“It is plain from AA and the other family evidence that XX is a loved family member, not least by their making this application and putting together with so much effort the care package and evidence.”

Mrs Justice Lieven said there were also other intangible benefits that still mattered to any human being despite having lost capacity and perhaps having limited understanding of the outside world. “The benefit of being in the place of his childhood, with the smells of that place, with the food of his childhood and also surrounded by religion of his family that was certainly important to him in the past. Those things matter in ways that are hard to articulate, and possibly matter even more to someone approaching their last days.”

The judge accepted there was some physical risk to XX in travelling home, which would involve an air ambulance, but found that the benefits of having both his family around him and the place where he wanted to be outweighed the risk.

Adam Carey